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VOID 


Judicial  and  Execution  Sales 


AND 


THE  RIGHTS,  REMEDIES  AND  LIABILITIES 
OF  PURCHASERS  THEREAT, 


BRIEF  DISCUSSION  OF  CURATIVE  STATUTES 


SPECIAL  STATUTES  AUTHORIZING  INVOLUNTARY  SALES. 


By    JOHN    C.   KLEBER, 

Op  the  Washington  Bar. 


NEW  YORK 

THE  BANKS  LAW  PUBLISHING  CO. 

■2.1  Murkay  Street 

1899 


I9?9 


COPTRIGHT  BY 

THE  BANKS  LAW  PUBLISHING  CO., 

1899. 


J.    P..    LYON    COMPANY 

PRINTERS     AND     BINDERS 

ALBANY,    N.  Y. 


ft 


To  My  Friend 
the 
Hon.     M.     J.     GORDON, 
Chief  Justice  of  the  Supreme  Court  of  Washington, 
as  an 
Expression  of  respect  for  his  uniform  courtesy  and  distinguished  bear- 
ing as  a  lawyer,  his  attainments  and  eminent  qualifications  as  a 
jurist,   and   his   unswerving   fidelity   as   a   friend,   these   pages    are 
respectfully  inscribed, 

By  the  Author. 


7407^7 


PREFACE. 


In  the  preparation  of  this  work  the  general  characteristics 
and  distinctions  between  execution  sales  which  are  minis- 
terial, and  sales  in  probate  by  administrators,  executors  and 
guardians  and  other  chancery  sales  which  are  properly  desig- 
nated as  judicial  sales,  are  never  lost  sight  of  throughout  the 
work.  The  author  has  at  all  times  endeavored  to  avoid  the 
promiscuous  use  of  the  terms  "  void  "  and  "  voidable  ",  and 
has  sought  to  employ  these  terms  according  to  their  strict 
legal  meaning,  indicating  by  the  former  that  which  is  utterly 
without  legal  validity  and  an  uncompromising  nullity,  and  by 
the  latter  such  acts  and  proceedings  which  are  affected  by  in- 
firmities by  reason  of  irregularities  or  omissions  and  hence 
irregular  but  not  absolutely  void. 

To  augment  the  practical  utility  of  the  work,  at  the  expense 
of  considerable  additional  labor,  parallel  references  have  been 
made  to  the  American  Decisions  and  American  Keports,  and 
to  the  National  Tieporter  System. 

While  craving  forgiveness  for  the  omission  of  much  ma- 
terial, which  being  perfectly  relevant  to  the  subject  in  hand 
and  which  might  have  been  appropriately  incorporated,  the 
author  begs  the  pardon  of  the  indulgent  profession  for  that 
opposite  literary  vice,  repetition,  though  but  an  inconsider- 


4  Preface.  • 

able  portion  of  the  volume  is  consumed  by  the  reiteration  of 
controlling  principles.  Being, conscious  of  its  imperfections 
and  omissions,  and  realizing  that  every  conceivable  proposi- 
tion that  may  arise  within  the  scope  of  the  work  has  not  been 
treated  therein,  yet  he  believes  that  what  is  therein  contained 
will  neither  mislead  nor  confuse;  and  if  it  shall  be  of  assist- 
ance to  the  lawyer  to  some  extent  in  his  arduous  duties,  the 
time  consumed  and  energies  expended  will  be  sufficiently 

compensated. 

JOHN  C.  KLEBER. 
May,  1899. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

The  Nature  of  Judicial  and  Execution  Sales  —  General  Principles 
and  Definitions. 

Section     1.  Technical  Judicial  Sale  Defined  —  Is  a  Sale  Made  Pendente 
lite. 

2.  Court  is  the  Vendor  in  a  Judicial  Sale. 

3.  The  Master  or  Commissioner  the  Agent  of  the  Court. 

4.  Sale  is  Incomplete  until  After  Confirmation. 

5.  What     Sales   are   Judicial  —  Sales   Made   by   Assignees   in 

Bankruptcy. 

6.  ■  Administrator's  Sales  of  Decedent's  Lands. 

7.  When  Administrator's  Sales  not  Judicial. 

8.  — -Partition  and  Mortgage  Foreclosure  Sales. 

9.  In  Admiralty  Proceedings. 

10.  In  Enforcement  of  Municipal  Liens. 

11.  Vendor's  Liens  for  Unpaid  Purchase  Money. 

12.  By  Guardians,  on  Mechanics'  Liens  and  by  Orphans' 

Court. 

13.  Execution  Sales  not  Judicial  — Are  Generally  Ministerial. 

14.  Nature  of  Execution  Sales. 

15.  Distinction  Between  Judicial  and  Execution  Sales—  Radi- 

cal Difference. 

16.  Distinguishing  Characteristics  of  an  Execution  Sale. 

17.  -When  Execution  Sale  Complete. 

IS.  Further  Elements  of  Difference. 

19.  Quasi  Judicial  Sales  —  Execution  Sales  Required  to  be  Con- 

firmed. 

20.  Effect  of  Confirming  Order. 

21.  Nature  of  Certain  Other  Sales  — Sales  in  Attachment  Pro- 

ceedings. 

22.  Only  the  Property  Attached  is  Affected  in  Such  Case. 

23.  Classes  of  Judicial  Sales  —  Three  General  Classes. 

24.  -Sales   in   Foreclosure   of  Mechanics'   Liens   in   Georgia 

not  Judicial. 

25.  Void  and  Voidable    Sales  —  Distinction  Between  Void  and 

Voidable  Sales. 

26.  Void  and  Voidable  Defined. 

27.  Who  Bound  by  a  Voidable  Act. 


6  TABLE    OF   CONTEXTS. 

Section  28.  Void  and   Voidable   Sometimes   Indisci  iminately  Em- 
ployed. 

29.  Meaning  Attributed  to  Void  and  Voidable. 

30.  Degrees  of  Voidness  — ■  Absolute  Nullities. 

31.  Qualified  Void  Acts. 

32.  Statute  of  Frauds  —  Dees  not  Apply  to  Judicial  Sales. 

33.  Administrators   Sales  in  Illinois  Within   the   Statute. 

34.  Execution  Sales  Within  the  Statute. 

35.  The   Author's   Views. 

36.  Due  Process  of  Law  —  Comprehensive  Definition  Impcssi  le. 

37.  Interpretation  of  the  Term. 

38.  Notice  an  Essential  Requirement. 

39.  An  Opportunity  to  be  Heard  Essential. 

40.  Power  to  Prescribe  Notice. 

41.  Constructive  Service  upon  Residents  and  Non-residents. 

CHAPTER  II. 

Jurisdiction  and  General  Principles  Involved  in  Jurisdictional  In- 
quiries —  Judgments  and  Decrees  Affecting  Title  to  Land. 

Section     42.  Meaning  of  Jurisdiction  —  Is  the  Power  to  Hear  and  De- 
termine. 

43.  Upon  What  Dependent. 

44.  When  Proceedings  coram  non  judice. 

45.  When  Proceedings  are  coram  judice. 

46.  Three  Essentials  in  the  Right  to  Adjudicate. 

47.  Source    of    Jurisdiction  —  Common    Law    and    Equitable 

Jurisdiction. 

48.  Jurisdiction  Granted  by  Constitutional  and  Statutory 

Provisions. 

49.  Over  the  Person  of  the  Defendant. 

50.  Over  Person  of  Defendant  not  in  the  State. 

51.  Measure  of  Jurisdiction. 

52.  Jurisdiction  over  res. 

53.  No  Jurisdiction  in  Appellate  Court  if  None  in  Lower 

Court. 

54.  Jurisdiction  over  Subject-matter  —  How  Conferred. 

55.  Under  Unconstitutional  Act. 

56.  Appearance  not  a  Waiver  of  a  Lack  of  Jurisdiction. 

57.  Conferred  Subsequent  to  Institution  of  Suit. 

58.  Limitation  of  This  Jurisdiction. 

59.  Acquisition  of  Jurisdiction  to  Render  Pei-snnal  Judgment 

—  Jurisdiction  of  tho  Person  of  Defendant  Essential. 

60.  Constructive  Service  only  Insufficient. 

61.  How  a  Minor  P.mucrht  in. 

62-  Complainant  in  Court  by  Virtue  of  his  Petition. 


TABLE    OF   CONTEXTS.  < 

Section     63.  Irregular  Process  Sowed. 

64.  Process  Served  Wanting  in  Substance. 

65.  Defective  Service  and  Failure  of  Service. 

66.  Actual   Notice  — In  general. 

67.  Record  Disclosing  Service  in  a  Particular  Manner. 

68.  Leaving  Summons  at  Last  Place  of  Residence  Actual 

Service. 

69.  Pleadings  Showing  Absence  or  Non-residence  of  De- 
fendant. 

70.  Notice  to  Minors. 

71.  Suits  Against  Husband  and  Wife. 

72.  In  Proceedings  of  Sale  by  Administrators. 

73.  Service  of  Process  and  the  Return  —  Effect  When  Served 

by  Unauthorized  Person. 

74.  _  Service  Required  to  be  Made  by  Particular  Officer. 

75.  Service  by  Party  not  Valid. 

76.  Service  by  Private  Person. 

77.  Written  Admission  of  Service  of  Process. 

78.  Personal  Service  Outside  of  the  State. 

79.  . •  Officer's  Return  of  Service  Conclusive. 

80.  ■ -When  Return  not  Conclusive. 

81.  Defendant  Brought  into  State  by  Fraud  or  Force. 

82.  General   Appearance   by  Defendant  and  Its   Effect  —  Ap- 

pearance Defined. 

83.  Answer  Stricken  Out  as  Insufficient. 

84.  General  Appearance  Waives  Defect  in  Process 

85.  Waives  Jurisdictional  Defect  in  Issuing  Process. 

86.  Appearance  by  Infants. 

87.  Effect  of  Special   Appearance  —  In  Cases  Where   Statute 

does  not  Prohibit  it. 

88.  Statutory  Rule  in  Some  States. 

89.  Application  to  Remove  from  State  to  Federal  Court. 

90.  Unauthorized   Appearance   by  Attorney  —  Exposes   Judg- 

ment to  Collateral  Attack. 

91.  Rule  of  Collateral  Impeachment  Denied. 

92.  Jurisdiction   to   Render  Judgment    in    rem —  Seizure   and 

Notice. 

93.  Sales  by  Guardians  of  Ward's  Lands. 

94.  Sales  of  Perishable  Property  pendente  lite. 

95.  Only   the   Property   Actually   Before   the   Court    Af- 
fected. 

96.  Judgment    Must   be   Rendered   on    Cause    of   Action 

Stated. 

97.  .Foreclosure  of  Mortgage  and  Other  Liens. 

98.  Decree  Assigning  Pesidue  of  Estate  of  a  Decedent. 

99.  Attachment  of  Land  in  Justice's  Court. 


8  TABLE    OF   CONTEXTS. 

Section    100.  Jurisdiction  as  Dependent  on  Amount  in  Controversy  — 
Amount  in  Excess  Renders  Judgment  Void. 

101.  No  Jurisdiction  on  Appeal  When  None  Below. 

102.  Amount  Below  Legal  Minimum. 

103.  Constructive  Service  of  Process  or  Notice  —  Constructive 

Service  of  Notice  Defined. 

104.  Not  Available  in  Purely  Personal  Actions. 

105.  On  Resident  Defendant. 

106.  — —  Is  in  Derogation  of  Common  Law. 

107.  Essential  Jurisdictional  Facts  Must  Appear. 

108.  In  What  Cases  Permissible. 

109.  Amendment  of  Complaint. 

110. What  Affidavit  for  Publication  Must  Show. 

111.  - — —  Strict  Rule  Prevails  in  Some  States. 

112.  Liberal  Rule  Elsewhere. 

113.  Probative  Facts  Must  Appear. 

114.  Facts  Inferentially  Stated,  Only. 

115.  Affidavit  Must  Show  Action  to  be  One  Mentioned  in 

Statute. 

116.  Affidavit  on  Information  and  Belief. 

117.  Object  and  General  Nature  of  the  Action. 

118.  Affidavit  Must  be  Filed  Before  Publication. 

119.  Eelation  of  Affidavit  to  Order  of  Publication. 

120.  False  Statement  as  to  Cause  of  Action. 

121.  Affidavit  and  Complaint. 

122.  Verified  Complaint  Must  be  Filed. 

123.  Facts    Authorizing    Constructive    Service    Shown    by 

Return. 

124.  Suits  Against  Defunct  Corporations  in  Michigan. 

125.  Order   of   Publication   Must    Contain   Essential   Par- 
ticulars. 

126.  Issued  by  Clerk  Without  Order  from  Court. 

127.  Misnomer  of  Plaintiff  or  Defendant. 

128.  Order  Providing  for  Unauthorized  Service. 

129.  Order  Abridging  the  Time  for  Appearance. 

130.  Publication  for  Too  Short  Period. 

131.  Mere  Irregularities  in  Notice  not  Fatal. 

132.  Death  of  Defendant  Pending  Publication. 

133.  One  Publication  on  Non-judicial  Day. 

134.  Unknown  Defendants  Served  Constructively. 

135.  Personal  Service  Outside  of  the  State. 

136.  Affidavit  Made  by  Unauthorized  Person. 

137.  Publication   Against   Unknown  on  Petition  Against 

Known  Owner. 

138.  Disqualification  of  Judge  —  Renders   Proceedings  Invalid. 

139.  Statute  Contravened  Makes  Proceedings  Void, 


TABLE   or   CONTENTS.  9 

Section   140.  Loss,  Excess  and  Suspension  of  Jurisdiction  —  Jurisdiction 
Generally  Continues   Until  Judgment. 

141.  Lost  by  Appeal  or  Removal. 

142.  Lost  During  Intervals  Between  Regular  Terms. 

143.  Non-attendants  of  Judge. 

144.  Court  Sitting  Outside  of  County. 

145.  Jurisdiction  Exhausted  Over  Subject-matter. 

140.  -Judgment  Beyond  the  Issue. 

147.  -Justice  of  the  Peace  Absent  on  Day  of  Trial. 

148.  Other  Fatalities  in  Justice's  Procevdings. 

149.  Effect   of  Want    of   Jurisdiction  —  Makes   the   Judgment 

and  Proceedings  Void. 

150.  ■ -Administration  on  Estate  of  Living  Person. 

151.  Judicial  Authority  can  not  be  Delegated. 

152.  Face  of  Record  Showing  a  Want  of  Jurisdiction. 

153.  Only  Part  of  Defendants  Summoned. 

154.  Because  Debt  Barred  by  Statute  of  Limitations. 

155.  Nature   of   Sales   in   Probate   of   Lands   of   a  Decedent  — 

Fundamental  Fact  is  Death  of  Owner. 

156.  .Proceedings    in   rem. 

157.  Guardians'  Sales  Considered  Both  Adversary  and  in 

rem. 

15S.  Are  Adversary  Proceedings. 

159.  Probate   Sales  When  There  are  no  Debts  —  Adjudication 

of  the  Court  is  Conclusive. 

160.  -Finding  of  Probate  Court  only  prima  facie. 

161.  Effect  of  Failure  to  Appoint  Guardian  ad  litem  —  Gener- 

ally Considered  but  an  Irregularity. 

162.  Is  a  Fatal  Infirmity. 

163.  Sale   of   Lands   Located  in  Another   County  —  Statutory 

Requirement  as  to  Institution  of  Suit. 

164.  Objection  to  Suit  Brought  in  Wrong  County  may  be 

Waived. 

165. -Probate  Sale  of  Lands  in  Another  County. 

166.  Death  or  Disability  of  the  Parties  or  Either  of  Them — 

Death  of  Sole  Plaintiff  or  Sole  Defendant. 

167.  Not  Suggested  by  Record  Makes  Judgment  Voidable 

Merely. 

168.  One  of  Several  Defendants  Dies  Before  Judgment. 

169.  Death  of  Sole  Defendant  Renders  Judgment  Void. 

170.  -Death  of  Defendant  Pending  Publication  of  Notice. 

171.  Effect  of  the  Death  of  Sole  Plaintiff. 

172.  Jurisdiction  of  Minors  and  Incomp  tents. 

173.  Decree  Vacated  After  Sale  and  its  Effect. 

174.  Actions  Against  Married  Women. 


10  TABLE    OF   COXTEXTS. 

Section  175.  Instances    of   Want    of   Jurisdiction  —  Title    to    Land    in 
Another  State. 

176.  Partition  and  Mortgage  Foreclosure  of  Land  in  An- 
other State. 

177.  Decree  Holding  Conveyance  in  Another  State  Fraud- 
ulent. 

178.  Sale  by  Administrator  of  Living  Owner's  Lands. 

179.  'Other  Instances. 

180.  Principles     Involved     in     Jurisdictional     Inquiries  —  Pre- 

sumptions in  Favor  of  Jurisdiction. 

181.  Pvecital  of  Jurisdictional  Facts  Insufficient. 

182.  No  Pit  sumptions  Obtain  in  Direct  Attack. 

183.  Presumptions    Where    Jurisdiction    is    Acquired    by 

Constructive   Xotice. 

184.  Extent  of  the  Rule  of  Presumptions. 

185.  Presumptions  not  Applicable  to  Inferior  Courts. 

186.  Courts  of  Probate  Jurisdiction. 

187.  Conclusiveness   of   Judgments   and   Decrees  —  Parties   and 

Privies. 

188.  Void  as  to  One  Only  of  Several  Parties. 

189.  In  what  Capacity  Judgment  Conclusive. 

190. Suit  Commenced  After  Defendant's  Death. 

191.  Proceedings  Against  Unknown  Heirs. 

192.  Upon  what  Matters  Conclusive. 

193.  ■  Who  are  Privies. 

194.  Effect  where  Judgment  or  Decree  is  Void. 

195.  Judgments  Outside  the  Issues  not  Binding. 

196.  Actions    in    personam    and   Proceedings   in   rem  Dis- 
tinguished. 

197.  Questions  of  Title  Conclusively  Determined. 

198.  ■  Misconception  in  Form  of  Proceeding. 

199.  Conclusiveness  of  Judgments  as  to  Creditors. 

200.  What  Creditors  may  Avoid  a  Judgment. 

201.  Conclusiveness  of  Erroneous  Judgment  where   Sale  Made 

Before  Reversal  or  Vacation  —  Sale  to  Stranger  Without 
Notice. 

202.  Judgment  Creditor  as  Purchaser. 

203.  Sales  Subsequent  to  Expiration  of  Judgment  Lien  —  Is  as 

if  no  Lien  of  Judgment  had  Ever  Existed. 

204.  Execution    Issued    Before    its    Expiration    Preserves 

Lien. 

205.  Effect  and  Nature  of  Judgment  Lien  —  Creature  of  Stat- 

ute and  a  General  Lien. 

206.  Upon  what  Property  Lien  Attaches. 

207.  When  the  Lien  Attaches. 

208.  ■ Lien  Attaches  to  Lands  Conveyed  in  Fraud  of  Cred- 

itors. 


TABLE   OF   CONTEXTS.  11 


CHAPTER  III. 

Order  or  License  of  Sale  by  Administrator ,  Executor  or  Guardian, 
and  How  Procured. 

Section  209.  Lands  of  Decedents  in  General  —  Are  Assets  to  Liquidate 
Debts. 

210.  Petition    for   Probate    Sale    Must   be   Presented   by   Com- 

petent   Petitioner  —  Incompetency    a   Jurisdictional    In- 
firmity. 

211.  Sale  by  Fiduciary  Presupposes  their  Legal  Existence 

as  Such. 

212.  Part  Only  of  Administrators  or  Exccutois  Licensed 

to  Sell. 

213.  False  Representations  as  to  Guardianship  or  Release. 

214.  Lands  in  Another  State. 

215.  Petition  for  Orders  or  Licenses  for  the  Sale  of  Lands  of 

Decedents,   Infants  and  Incompetents  —  Are  the  Initial 
Step  or  Foundation  of  Order  or  License. 

216.  Substantial  Compliance  with  Requirements  of  Statute 

Essential. 

217.  Sale  can  Only  be  had  Upon  Allegations  of  Statutory 

Causes. 

218.  Essential  Facts  Defectively  Stated. 

219.  — ■ — -Administration   Proceedings   Indivisible   though   Sa'e 

Independent. 

220.  —  Petition  Must  Show  the  Existence  of  Debts. 

221.  Averment  of  No  Personal  Property  Essential. 

222.  To  Pay  Expenses  of  Administration. 

223.  Account  of  Personal  Estate  by  Fiduciary. 

224.  Claim  Barred  by  Statute  of  Limitations. 

225.  Verification  of  the  Petition. 

226.  Interested  Parties  Named  in  the  Petition, 

227.  Property  to  be  Sold  Should  be  Described. 

228.  Statutes  Providing  Sale  Can  Not  be  Avoided.  Certain 

Things  Appearing. 

229.  Policy  of  the  Law  Regarding  Probate  Sales. 

230.  Jurisdiction  Dependent  on  Sufficient  Averment  of  Facts  — 

Averment  of  Sufficient  Facts  and  Not   Their  Truth  Es- 
sential. 

231.  Falsity  of  Facts  Can  Not  be  Shown  Collaterally. 

232.  Notice  of  the  Pendency  of  the  Petition  for  an   Order  or 

License  of  Sale  not  Considered  an  Indispensable  R&  uir<  - 
ment  —  Two  Distinct  Views  as  to  Probate  Sales. 

233.  Notice   not  Jurisdictional   where   Proceedings  are   in 

rem. 

234.  Notice  not  Essential  where  Guardian's  Sales  are  in  rem. 


12  TABLE    OF   CONTEXTS. 

Section  235.  Notice  of  Pendency  of  the  Application  for  an  Order  or 
License  of  Sale  Considered  a  Jurisdictional  Requirement 

—  If    Sale   by   Administrator    is    Considered   Adversary 
Notice  is  Essential. 

236.  Notice   in   Sales   by  Guardians. 

237.  Statutes  Must  be  Strictly  Pursued. 

238.  Acceptance  and  Waiver  of  Service  of  Notice. 

239.  To  be  Operative  the  Notice  Must  be  Given  in  the  Manner 

as  Directed  by  Statute  —  Geneva!  Rule  as  to  Defective 
Service  and  Non-service. 

240.  Day  Unauthorized  or  Not  Sufficiently  Remote. 

241.  If  Description  is  Given  it  Must  be  Correct. 

242.  Notice  Given  in  Unauthorized  Manner. 

243.  Notice  for  the  Prescribed  Length  of  Time  Must  be  Given 

—  Provision  of  Statute  as  to  Length  of  Notice  is  Im- 
perative. 

244.  The  Order  or  License  of  Sale  and  Its  Conclusiveness  as  an 

Adjudication  —  Order  Must  not  Go  Beyond  the  Petition. 

245.  -Only  the  Land  Embraced  in  the  Order  Can  be  Sold. 

246.  -Order  to  Sell  on  Petition  to  Mortgage. 

247.  -Order   of   Sale  to   Pay  Debts   Barred   by   Statute   of 

Limitations. 

248.  Description  of  Property  in  the  Order. 

249.  Statute   Authorizing   a   Sale   Does   Not   Include   Ex- 
change or  Mortgage. 

250.  Sale  of  a  Part  Only  or  of  Interest  Subject  to  Incum- 
brance. 

251.  Order  of  Sale  is  Conclusive  if  Court  had  Jurisdiction. 

252.  Healing   Statutes   and   Their   Effect  —  General   Provisions 

of  These  Statutes. 

253.  Failure  to  Give  the  Sale  Bond  Required. 

254.  Failure  to  Take   the  Oath  Prescribed. 

255.  Failure  to  Give  the  Notice. 

256.  The  Sale  Must  be  Confirmed. 

257.  Land  Must  be  Purchased  in  Good  Faith. 


CHAPTER  IV. 

Sales    Void   by   Reason    of   Errors    or    Omissions    Subsequent    to 
Judgment,  Decree  or  Order  of  Sale. 

Section  258.  General  Rule  as  to  the  Effect  of  Irregularities  —  The  En- 
forcement of  a  Judgment  Not  a  Judicial  Act. 

259.  Irregularities  Will  Generally  Not  Make  the  Sale  Void. 

260.  Directions  in  the  Decree  Must  be  Pursued. 

261.  In  Case  of  Special   Healing  Statute. 


TABLE    OF   CONTENTS.  13 

Section  262.  A  Valid  Execution  an  Indispensable  Requisite  —  Execu- 
tion Must   Issue  Upon  a  Valid  Judgment. 

263.  Must  Not  Issue  I  pon  a  Satisfied  Judgment. 

264.  Must  be  Awarded  by  tbe  Judgment  or  by  Law. 

265.  Must   be    Sufficient    and   Emanate   from   the    Proper 

Court. 

266.  Law    Must    Authorize    Writ    to    Issue    Against    De- 
fendant. 

>  267.  Must  Describe  Parties   and    Show   for  Whose  Benefit 

Issued. 

268.  The   Writ    of   Execution   Must   be    Sufficient   in   Form  — 

Must  Conform  to  Judgment  in  Amount  and  Substance. 

269.  When  Writ  Fails  to  Follow  Judgment  as  to  Parties. 

270. Execution  Not  Under  Seal. 

271.  Should  Run  in  the  Name  of  the  State. 

272.  Essential  Recitals  in  the  Writ. 

273.  Limitations  Upon  the   Issuance  of  Execution  —  At   Com- 

mon Law. 

274.  Under  the  Statutes. 

275.  Issuance  Pending  Stay  of  Proceedings. 

276.  Consequences  of  the  Premature  Issuance  of  Execution  — 

Issued  in  Violation  of  Statutory  Inhibition. 

277.  Judgment  Must  have  been  Rendered  Before  the  Writ 

Can  Issue. 

278.  When  Advantage  Must  be  Taken  of  Premature   Is- 
suance of  Writ. 

279.  Execution  Issued  After  Death   of  Judgment  Debtor  —  In 

Proceedings  in  the  Nature  of  in   rem. 

280.  Consequences   of   Issuance   After   Death   of   Sole   De- 
fendant. 

281.  Death  of  One  Only  of  Several  Defendants. 

282.  Issued   Before,    but    Sale   After   Death   of   Judgment 

Debtor. 

283.  Effect  of  Issuance  of  Execution  After  Death  of  Sole  Judg- 

ment Creditor  —  Makes  Writ  at  Least  Irregular. 

284.  Sometimes  Makes  it  Wholly  Void. 

285.  Execution  Supported  by  Dormant  Judgment  —  Is  Voidable 

Only  as   Between   the  Parties. 

286.  Intervening  Rights  of  Third  Parties. 

287.  In  Case  of  Absolute  Limitation  and  no  Provision  for 

Revivor. 

288.  Where  Judgment  Creditor  is  the  Purchaser. 

289.  Sale  under  Satisfied  Judgment  —  Is  Void  by  the  Weight 

of  Authority. 

290.  Silence  of  Record  and  no  Notice  Gives  Title  to  Pur- 
chaser, 


14  TABLE    OF   CONTEXTS. 

Section  291.  Effect  of  Reversal  of  Judgment  upcn  the  Sale  Thereunder 
—  Purchase  by  Stranger  in  Good  Faith  and  Without 
Notice. 

292.  Defendant's  Rights  and  Remedy  upon  a  Reversal. 

293.  The  Rule  also  Applies  to  Judicial  Sales. 

294.  Want  of  Jurisdiction  Annuls  the  Sale  in  Any  Event. 

295.  By  Whom  the  Sale  Must  be  Conducted  —  In  Judicial  Sales 

Generally  by  the  Officer  Designated  in  the  Decree. 

296. In  Execution  Sales  by  the  Officer  to  Whom  the  Writ 

is  Directed. 

297.  Lands  Located  in  Another  County. 

298.  Writ  in  Officer's  Own  Favor. 

299.  Sales  by  Administrators,  Executors  and  Guardians. 

300.  Sale  by  Agent  of  Commissioner. 

301.  Limitations  on  Time  of  Making  Sale  —  Sales  Noticed  for 

and  Made  on  Non-judicial  Day. 

302.  Sale   Made   upon   Day   Other   than   that    Designated     by 

Statute. 

303.  'After  Expiration  of  Active  Energy  of  the  Execution. 

304. Sale    After    Death    of    Debtor    on    Execution    Issued 

Before. 
305.  Sale  on  Execution  Issued  After  Bar  of  the   Statute 

is  Complete. 
306. Execution  Issued  Before  but  Sale  Made  After  Lien 

of  Judgment  Expired. 

307.  Where  Judgment  was  satisfied  Before  Sale. 

308. Statute  Repealed  or  Court  Abolished  Before  Sale. 

309. Property  Put  in  Hands  of  Receiver  Before   Sale. 

310.  When  Sale  Must  be  at  Public  Vendue  —  Under  Executions 

and  Decrees  and  Orders  of  Sale. 

311.  When  Levy  an  Essential  Requisite  —  Not  Necessary  where 

Judgment  is  a  Lien  on  the  Land. 

312.  Where  Judgment  or  Decree  Directs  the  Sale  of  the 

Property. 

313.  Where  Judgments  are  Not  General  Liens. 

314.  On  Personal  Property  under  Execution. 

315.  Effect  and  Sufficiency  of  Levy. 

316.  Failure  to  Take  Oath  Concerning  the  Sale  —  Statutes  Re- 

quiring Oath  Held  Mandatory. 

317.  Effect  of  Failure  to  Give  Additional  Bond  — Object  or  Re- 

quiring such  Bond. 
-Under  Healim:  Statutes  Want  of  Bond  is  Fatal. 

319.  Where  no  Healing  Statutes  Exist  Want  of  Bond  not 
Fatal. 

320.  Effect   of   Want   of   Notice   of   Sale  — The   Object   of   the 

Notice  of  Sale. 

321.  Purchaser  Free  from  Fault. 

322.  Fraud  and  Collusion  Imputed  to  Purchaser. 


TABLE    OF   CONTEXTS.  15 

Section   323.  •  In   Administrators',    Guardians'   and   Other   Judicial 

Sales. 

324.  In  States  Having  a  Healing  Statute  Notice  Essential. 

325.  Notice  an  Imperative  Requirement. 

326.  Notice  May  be  Waived. 

327.  Time  and  Place  Bids  Receivable  —  Bid  Must  be  Made  at 

Time  of  Sale. 

328.  Plaintiff's  Bid  when  no  Other  Persons  Present. 

3:21).  Sales  Made  at  an  Improper  or  Unauthorized  Place  —  In 
Judicial  Sales  an  Irregularity  M(  r<  ly. 

330.  Execution  Sales  of  Land  Outside  of  County  are  Void. 

331.  Of  Personal  Property  Sold  under  Execution. 

332.  Sales  without  Appraisement  or  Inquisition  —  Are  Void  by 

the   Current  of  Authority. 

333.  Are  also  Held  Voidable  Merely. 

334.  Waiver  of  Appraisement. 

335.  In  Sales  by  Administrators  and  Guardians. 

336.  Sales  to  Raise  Excessive  Amount  —  Makes  the  Sale  Vo'd- 

able   Merely. 

337.  Makes  the  Sale  Void. 

338.  Sometimes  Held  to  Make  Probate  Sale  Void. 

339.  Sale   of   Excessive   Quantity  —  Sometimes   Held   to   Make 

the  Sale  Void. 

340.  Is  an  Irregularity  Making  Sale  Voidable  Merely. 

341.  Sales  of  Property  or  Interest  not  Liable  —  Of  Third  Per- 

son Cannot  be  Sold. 

342.  Naked  Legal  Title  only  Held  by  Judgment  Debtor. 

343.  Sale  of  Homestead  is  Void. 

344.  Sale  of  Land  not  Embraced  in  the  Order  of  Sale. 

345.  Sale  of  Exempt  Personal  Property  is  Void. 

346.  Property  of  Municipal  Corporation. 

347.  Community  Interest  for  Separate  Debt  of  One  Spouse. 

34S.  Sales  of  Partial  Estate,  or  of  Different  Interest  —  Where 

Execution  Defendant  is  Owner  of  Entire  Fee. 

349.  Sales  in  Probate  Proceedings. 

350.  Sale  of  Property  Subject  to  Mortgage. 

351.  Sale   of  Land  in  Adverse   Possession  —  At   Common    Law 

was  Void. 

352.  Void   under   Process   of   Law. 

353.  Does  not  Affect  Execution  or  Judicial  Sales. 

354.  Indefinite  or  Undesignated  Tract  Sold  — If  Inherently  De- 

fective in  Description  Sale  Void. 

355.  Effect  of  Inadequacy  of  Price  —  Mere  Inadequacy  Alone 

not  Sufficient  to  Avoid  a  Sale. 

356.  Gross  Inadequacy  Sometimes  held  Sufficient  to  Avoid 

Sale. 

357.  Inadequacy  Coupled  with  Irregularities. 


10  TABLE    OF    CONTEXTS. 

Section   358.  Sales  in  solido  —  Are  Usually  Considered  Voidable  Only. 

359.  Also  Considered  to  Make  the  Sale  Void. 

360.  Combinations  and  Devices  to  Prevent  Competition  —  Sti- 

fling Bidding  is  Fraudulent  and  Makes  Sale  Invalid. 

361.  No  title  will  Pass  to  the  Fraudulent  Purchaser. 

362.  Sales    to    Disqualified    Purchasers  —  Are    Against    Public 

Policy. 

363.  Declared  Void  by  Statute  in  Some  States. 

364.  -Direct  Purchase  by  Fiduciary  is  Void. 

365.  — — Purchase  by  Sheriff  or  Constable. 

366.  Purchase  by  Judges  or  Attorneys  in  the  Case. 

367.  Purchase  by  Administrator  After  the  Sale. 

368.  Secret  Frauds  and  Infirmities  Ineffectual  on  Title  of  Pur- 

chaser— -Fraud  Vitiates  the  Sale. 

369.  Purchaser  Free  from  Negligence  and  Fraud  is  Pro- 
tected. 

370.  Judgment  Creditor  not  an  Innocent  Purchaser 

371.  Property  Charged  with  Liens  and  Tru-ts. 

372.  — —  Innocent  Purchaser  from  Fraudulent  Vendee. 

373.  Judgment  in  Fact  Satisfied,  but  Record  Silent. 

374.  Misappropriation  of  Purchase  Money. 

375.  Purchase  Money  not  Fully  Paid. 

376.  Omission  of  Return  or  Defective  Return. 

377.  Purchase  Money  Must  be  Paid  to  Proper  Officer. 

378.  Pre-existing  Equities  and  Unrecorded  Deeds. 

CHAPTER   V. 

Confirmation  and  Deed. 

Section  379.  Meaning   of    Confirmation  —  Is    the   Judicial    Sanction    of 
the  Sale. 

380.  What  Matters  are  Cured  by  Confirmation  and  What 

Not. 

381.  Confirmation    Essential    to    Title  —  Sale    is   not   Complete 

until  Confirmed. 

382.  After  Confirmation  Purchaser  is  the  Owner. 

383.  Confirmation    Discretionary  —  Is   in    Sound   Discretion    of 

Court. 

384.  Abuse  of  Discretion  Corrected  on  Appeal. 

385.  General  Effect  of  Confirmation  —  The  General  Scope  of  the 

Order. 

386.  Effect  where  Jurisdiction  had  Attached. 

387.  In   Sales   under  Execution. 

388.  Court   Adopts  Proceedings  of  Officer. 

389.  Notice   of   the   Application   for   Order   of   Confirmation  — 

Where  Statute  Requires  Notice  to  be  Given. 

390.  Effect  of  Confirmation  Entered  Without  Notice. 


TABLE   OF   CONTEXTS.  17 

Section   301.  How    Confirmation    Shown  —  Generally    Required    to    be 
Shown  Affirmatively. 

392.  When   Confirmation  Presumed. 

393.  Confirmation  by  Estoppel. 

394.  ■ May  be  Annulled,  but  not  Collaterally. 

395.  What    Irregularities    are    Cured    by    Confirmation  —  Ap- 

praisement or  Inquisition  Wanting-. 

396.  Defects  in  Notice  or  Want  of  Notice. 

397.  Sale  at  Wrong  Time  or  Place  or  Person. 

398.  Departures  from  Order  or  Decree. 

399.  Defective  Bond  or  Omission  to  Give  Bond. 

400.  Other  Irregularities  Cured. 

401.  Sales  without  Notice  or  Order. 

402.  Defects  Considered  Incurable  by  Confirmation. 

403.  Deed  Essential  to  Transfer  of  Legal   Title  —  In   Judicial 

and  Probate  Sales. 

404.  In  Execution  Sales. 

405.  In  Several  States  Deed  not  Essential. 

406.  When,   by  Whom  and  to  Whom  Deed  to  be  Made  —  By 

Whom  Deed  Executed  in  Execution  Sale;. 

407.  By  Whom  Deed  Made  in  Chancery  and  Probate  Sales. 

40S.  To  Whom  Deed  to  be  Made. 

409.  When  Deed  Made  where  Right  of  Redemption  Exists. 

410.  When   Deed   Executed   where   no    Right   to    Redeem 

Exists. 

411.  Statutes  Requiring  Deed  Made  within  a  Certain  Time. 

412.  If  Required  Confirmation  Must  be  First  Had. 

413.  Execution  of   Deed   Compelled   if   Officer   Refuses   to 

Make  It. 

414.  When  Deed  Void  because  Deficient  in  Form  and  Substance 

—  General  Rule  as  to  Sufficiency  of  Deed. 

415.  Recitals  Sufficient  in  Deed  Under  Executicn. 

416.  Instances  of  Omission  or  Insufficient  Recitals. 

417.  Deeds  in  Probate  Proceedings. 

418.  Recitals  as  Evidence  by  Statute. 

419.  Sufficiency  of  Description  Essential. 

420.  Omission  or  Defective  Acknowledgment. 

421.  Title  Obtained  by  Purchaser  at  Execution  and   Judicial 

Sale  —  In  Judicial  Sale. 

422.  What  Title  Obtained  by  Deed  under  Execution  Sale. 

423.  Effect  of  Deed  by  Relation  —  Relates  Back  to  Inception 

of  the  Lien. 

424.  Sale  under  Executions  when  One  or  More  Void,, 


18  TABLE    OF   CONTEXTS. 


CHAPTER  VI. 

Collateral   and   Direct   Impeachment  of    Judicial  and   Execution 

Sales. 

Section  425.  Collateral  and  Direct  Attack  upon  Judicial   Proceedings 
Distinguished  —  Direct  Attack  Defined. 

426.  Instances  of  Direct  Attack. 

427.  Collateral  Attack  Defined. 

428.  Instances   of   Collateral   Attack. 

429.  Presumptions   as   to   Jurisdiction  —  Judgments   of   Courts 

of  General  Jurisdiction. 

430.  Insufficient   Service  Appearing. 

431.  Presumption  in  Case  of  Constructive  Service. 

432.  Presumption  of  Jurisdiction  as  to  Inferior  Courts. 

433.  ■  Presumptions   as  to  Proceedings   of   Probate   Courts. 

434.  When  Collateral  Impeachment  Possible  —  In  Case  of  Want 

of  Jurisdiction  to  Pender  Judgment. 

435.  By  Third  Persons. 

436.  Sale   Vacated   by   Direct   Proceeding  —  When   by   Motion 

Must  be  WTithin  a  Reasonable  Time. 

437.  By  Suit  in  Equity. 

438.  Instances  of  Execution  and  Judicial  Sales  Void  Collater- 

ally —  If  Jurisdiction  is  Wanting  Sale  Void. 

439.  Sales  Founded  upon  Satisfied  Judgments. 

440.  Land  Sold  not  Embraced  in  the  Petition. 

441.  Petition  for  Order  or  License  Fatally  Defective. 

442.  ■  Land  Sold  not  Embraced  in  the  Order  or  Decree. 

443.  No  Notice  or  Application  fov  Order  of  Sale. 

444.  Sale  of  Land  Located  in  Another  State. 

445.  Failure  of  Jurisdiction  by  Constructive  Service. 

446.  Sales  in  Foreclosure  of  Tax  Liens. 

447.  No  Additional  Bond,   Notice  of  Sale  Given  or  Oatb 

Taken. 

448.  Execution  Sale  at  Wrong  Time  or  Place. 

449.  Sahs  A'oid  Because  of  Defect  in  Execution  or  its  En- 
forcement. 

450.  Sales  A'oid  Because  of  Fraud  in  Judgment  or  Sale. 

451.  -  - — Trial  Judge  Disqualified  from  Acting. 

45?    Effect  of  Statute  of  Limitations  on  Judicial  Sal?  —  Statute 
Does  Not   Apply  to  Void   Sales. 

453.  Essentials  to  Availability  of  Plea  of  Statute. 

454.  Statutes   Declaring  the  Effect  of  Judicial   Proceedings- 

Purchase  by  Disqualified  Purchaser. 

455.  — — Sale  not  Void  when  Certain  Things  Appear. 

456.  Other  Defects  and  Irregularities. 


TABLE   OF  CONTEXTS.  19 


CHAPTER  VII. 

Caveat  Emptor,  and  the  Legal  and  Equitable  Rights  of  Purchasers 
at  Void  Execution  and  Judicial  Sales. 

Section  457.  Application  and  Qualification  of  the  Rule  caveat  emptor  — 
Defective  Title  or  Failure  of  Title. 

458.  In  Case  Judgment  or  Sale  is  Void. 

459.  Effect  of  Accident.  Fraud  or  Mistake. 

460.  Purchase  by  Judgment  Creditor. 

461.  Right  of  Purchaser  to  Refuse  Payment  of  his  Bid  —  Winn 

Judgment  or  Sale  is  Void. 

462.  If  Purchaser  Bought  with  Notice  Can  Not  Resist. 

463.  Negligence  of  Purchaser  Precludes  Resistance. 

464.  Purchaser  is  Chargeable  with  Facts  Disclosed  by  the 

Record. 

465. If  Purchaser  has  been  Deceived  He  May  Refuse. 

466.  May  the  Purchaser  Demand  a  Marketable  Title. 

467.  Purchaser  a  Party  to  Proceedings  and  May  be  Com- 
pelled to   Pay. 

465.  Purchaser  is  Liable  for  Deficiency  on  a  Resale. 

469.  Right  of  Purchaser  to  Recover  Money  Paid  —  Rule  caveat 

emptor  Affecting  Recovery. 

470.  Reimbursement  Compelled  from  Parties. 

471. Reimbursement  as  a  Condition  Precedent  to  Recovery 

of  Land. 

472.  Judgment  Creditor  as  Purchaser. 

473.  Void  Sales  Ratified  by  Parties  in  Interest  —  Confirmation 

and  Ratification  in  General. 

474.  Ratification  by  Receipt  of  Proceeds  in  Execution  Sale. 

475.  Chancery  and  Probate  Sales  Ratified  by  Receipt  of 

Proceeds. 

476.  Ratification  by  Conduct  Otherwise  Than  by  Receipt 

of  Proceeds. 

477.  Ratification  by  Minors  Made. 

478.  Purchaser  in  Chancery  Sales  has  Right  to  Subrogation  — 

Doctrine  Applies  to  Chancery  Sales  in  General. 

479.  Subrogation  in  Void  Mortgage  Foreclosure  Sales. 

480.  In  Foreclosure  of  Tax  Liens. 

481.  Purchasers  at  Probate  Sales  have  Right  to  Subrogation  — 

The  Doctrine  of  Subrogation  Generally  Applicable. 

482.  Right  Exists  in  Case  the  Sale  is  a  Nullity. 

483.  Right    of   Purchaser   at    Execution    Sales    to    Subrogation 

Affirmed  —  Where  Execution  Defendant  has  no  Title. 

484.  Where  Judgment  is  Valid,  but  Subsequent  Proceed- 
ings Void. 


20  TABLE    OF   CONTEXTS. 

Section  4S5.  Doctrine  of  Subrogation  Denied  —  Results  of  Denial  of 
the  Eight  to  Subrogation. 

4S6.  Effect  of  Purchaser's  Fraud  on  Eight  to  Subrogation  — 
Obtains  no  Title  and  Forfeits  Money  Paid. 

487.  Purchase  of  Homestead  in  Contravention  of  Statute. 

48S.  Fraudulent  Purchaser  May  Assert  Equities  in  Mis- 
sissippi. 

489.  Eight  of  Purchaser  to  Equitable  Assistance  in  Supplying 

Defects.  Omissions  and  Mistakes  —  Equity  will  Not  Aid 
a  Defective  Execution  of  Statutory  Power. 

490.  ■ Correction  of  Errors  or  Mistakes  in  General. 

491.  Errors  or  Mistakes  in  Proceedings  and  Deed. 

490.  Uncertainty  of  Description  in  Mortgage  and  Proceed- 
ings. 
493.  Equity  will  Compel  Officer  to  Make  Proper  Convey- 


CHAPTER  VIII. 

Curative    Statutes,    and    Special    Acts    Authorizing    Involuntary 

Sales. 

Section  494.  Effect  and  Constitutionality  of  Curative  Statutes  —  L'mi- 
tations  upon  Passage  of  Curative  Statutes. 

495.  Irregular    Judicial    Proceedings    and    Sales    May    be 

Confirmed. 

496.  Limitations  on  Scope  of  Curative  Statutes  in  General. 

497.  Void  Judicial  Sales  and  Proceedings  Incurable. 

498.  Can  not  Contravene  the  Constitutional  Guaranty  of 

Due  Process  of  Law. 

499.  Can  not  Invade  the  Province  of  the  Judiciary. 

500.  Effect  of  Pending  Causes. 

501.  Defects  not  Jurisdictional  not  Curable  by  Confirma- 
tion. 

502.  Effect  of  Curative  Statutes  Limited  to  Original  Par- 
ties. 

503.  Operation  of  Curative  Statutes  upon  Tax  Titles. 

504.  Involuntary  Sales  under  Special  Acts  — General  Observa- 

tion on  Such  Acts. 

505.  Theory  upon  Which  Sales  under  Special  Act  Author- 
ized. 

506.  G  rounds  upon  Which  Sale  under  Special  Statute  Au- 
thorized. 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Abbott  v.  Curran,  397. 

v.  Peck,  436. 

Abernethy  v.  Dennis,  489. 

Acer  v.  Hotehkiss,  361. 

Ackerson  v.  Orchard,   72,    156,   228, 

233,   496. 
Acock  v.  Stewart,  414. 
Abdil  v.  Abdil,  70. 
Adams  v.  Buchanan,  420. 

v.  Baldwin,  113,  115,  445. 

v.  Cowles,   48,   67,   108,    117, 

131,  181. 

v.  Cox,  78. 

v.  Hockscher,   78. 

v.  Hosmer,   119. 

— v.  Jeffries,   226. 

v.   Kesee.  339. 

v.  Morrison,  338. 

v.  Palmer,   500. 

v.   Smith,    472. 

Agen  v.  Shannon,  391. 
Agar  v.  Tibbitts,  432. 
Ahlhauser  v.  Butler,  89. 
Ainsworth  v.  Greenlee,  331. 
Aitken  v.  Kinnan,  417. 
Albee  v.  Curtis.  203. 
Alday  v.  Rock  Island,  459. 
Aldrich  v.  Board,  499. 

v.  Lewis,   357. 

v.  Maitland,  361. 

V.  Wilcox.  336.  340. 

Alexander  v.  Abbott,  276. 
v.   Hardin,  3,  388. 

v.  Lvdick,    174. 

-  v.  Howe,   1,    2,    3.   4,    18. 

-  v.  Maverick,   184. 

-  v.  Miller,  269.  272. 

v.  Mortgage   Company,   438. 

v.  Nelson,  27.  -15.8. 

Alfred  v.  Magahan,  467. 
Allen  v.  Brown,  47G. 

v.  Coates,  s  I. 

v.  Cox,    103. 

v.  Elderkin,  8. 

a*.  Gillette.    3. 

v.  Kellam,   210. 

v.  Martin,    383. 

v.  Moss,    489. 

v.  Parrish,   333. 


Allen  v.  Poole,  8. 
—  v.  Kay,  446. 

v.  Sales,   416. 

v.  Saylor,  70,  172. 

v.  Shanks,  3S6. 

v.  Stage   Company,   27S. 

v.  Trimble,   406. 

Allis  v.  Billings,  27. 
Alston  v.  Emmerson,  70,  172. 
Allsbrook  v.  Eggleston,  391. 
Allsmiller  v.   Freuchenicht,   238. 
Almand  v.  Almand,  100. 
Allman   v.    Taylor,   374. 

Alms  v.  Gates,  355. 

Alston  v.  Emmerson,  70,  172. 

v.  Morphew,  331,  449. 

Aired  v.   Montague,   330. 
Alter.  Appeal  of,  498. 

Ames  v.  Williams,  216,  217. 
Anderson  v.  Brown,  406. 

v.  Coburn,  111. 

v.  Gray,  180,  201,  262,   267, 

269,    294. 

v.  Goff,  110,  125,  152. 

v.  Hawhe,  61,  90. 

v.  Marshall,   113. 

v.  Rider,   375. 

v.  Roberts,   31. 

Andrews  v.  Avory,  150. 

v.  Goff,   386. 

v.  Howard,    423. 

-  v.  O'Mahoney,   32,    467. 

v.  Powell,   S4. 

v.  Richardson,    484. 

v.  Russell,  494. 

v.  Scotan,  1,  17. 

-  v.  Wolcott,  421.  422. 
Ansonia    Company  v.   Connor,   303, 

449. 
Anthony  v.  Kasey,  146. 

v.  Wessel,  404. 

v.  Seminary,  161. 

Apel  v.  Kelsey,  4,  72,  156,  233, 
310,  335,  381,  396,  398,  399,  443, 
495. 

Armidon  v.   Peck.   467. 

Armis  v.  Smith,  14. 

Armstrong  v.  McCoy,  414,  415. 

Arnold  v.   Donaldson,  457. 

v.  Green,  47S. 


22 


TABLE    OF    CASES. 


Arnold  V.  McCord,   360. 

V.  Scott,  406. 

Armour  v.  Cochrane.  2,  6. 
Armstrong  v.  Vrooman,  34. 
Arrowsmith  v.   Gleason.  319,  399. 

v.  Harmoning,  319. 

Arthur  v.  Israel,  187. 
Ashtcn  v.  Slater.  205. 
Ashworth  v.  Harper,  100. 
Aspley  v.   Murphy,   308. 
Atkinson  v.  Allen,  200.  450. 

v.  Hancock,  206. 

Atcheson  v.  Waldron,  360. 
Atkins  v.  Kinnon,  223,  230. 
Atlas  National  Bank  v.  More,  199. 
Aultman   v.    Seiberling,   17. 
Austin  v.  Nalle,  139. 

Atwater  v.  Bank.  422. 
Atwood  v.  Bearss,  274. 
Austin  v.  Seminary,  161. 

v.  Tilden,  457. 

v.  Willis,    6. 

Axford  v.  Graham,  187. 
Axton  v.  Carter,   363.  477. 
Avers  v.   Baumgarten,   383. 

v.  Duprey,   333. 

B. 

Babcock  v.  Cobb.  253,  261,  318,  455. 

V.  Doe,  332. 

Bachelder  v.   Chevas,   267.   336. 
Bacon  v.  Cropsey,  274.  278. 
Bagley  v.  Ward!   203.  423. 
Bailey  v.  Bailey,  172.  192,  479. 

v.  Dilworty,   251. 

v.  Orphan  School,  292. 

v.  Sundberg,  196. 

Baird  v.  Lent.  332. 
Baker  v.  Casey.  331. 

v.  Chafline,   180. 

v.  Cb.isb.olm,   53. 

v.  Coppenbarger,   342,   422. 

v.  Roberts,    334. 

Baldwin  v.  Cullen.  359. 

Ballard  v.  Scruggs,  2s7.  358,  359. 

Bal linger  v.   Drook,   206. 

v.  Tarbell,   106. 

Balkely  v.  Abert,  337. 
Balm   v.   Xiimi,   142.   277. 
Ball  v.  Collins,  442. 
Bank  v.  Abbott,  492. 

v.  Bank,  435. 

v.  Beatty,  296. 

v.  Brooks,   90. 

v.  Carpenter,  374. 

v.  Distilling  Company,   307. 

v.  Dry  Goods  Company,  91. 

v.  Dudley.    308. 

v.  Eldridire,  80. 


Bank  v.  Elwood,  429. 

v.  Eltinge,    469,    484. 

v.  Fair      Association.      355, 


412. 


85. 


436. 

v.  Frame,  476. 

v.  Franklin,    272. 

v.  Gibson,    494,    502. 

v.  Green,  275,  387. 

v.  Guthrie,    343. 

v.  Hamer,    332. 

v.  Humphreys,  2,   458. 

-  y.  Huntoon,    332,    387,    388, 

v.  Ingersoll,    290. 

v.  Insurance    Company.    59, 

v.  Lienallen,  423. 

v.  King,   422. 

v.  Martin,  459,  461. 

v.  Miller.  494. 

v.'  Moore,    199,    450. 

v.  Morsell,   206. 

v.  Neel,   1,   3,   142,   379. 

V.  Page,  312. 

v.  Parent,    95. 

v.  Pearson,   100. 

v.  Peters,  45. 

v.  Riley.   343. 

v.  Risley,  208. 

v.  Rollins,  343. 

v.  Spencer.    437. 

v.  Tighe,  206,  422. 

v.  Trapier,    330. 

v.  Turney,    460. 

v.  United   States,    361,    486. 

v.  Walden,   402. 

v.  Wells,   204,  423. 

v.  Whitehall,  272. 

v.  Wilcox,    184,    186. 

Banks  y.  Amnion.   457. 

-  v.  Evans,  424.  458. 
v.  Bales.   359. 


Banta  v.  Reynolds,  456 
Barber  y.  Graves,  172. 

v.  Morris,   67,   92.    106,    111, 


118,    149.   181,   183,   428,   430,   43S. 

445. 
Baptist   Union   v.   Atwell,    119. 
Bardeen  v.  McEJinnie,  303. 
Barker  v.   Kane,    458. 
Barling    v.    Bishopp,    315. 
Barnard  v.  Boiler,  343. 
v.  Barnard,   45. 


Barney  v.  Vigoreoux,   76. 
Bardsley  v.   Hines,    126. 
Barnham   v.   San  Jose,   469. 
Barclay  v.  Hendrix.  134. 
Bamal  v.  Gleim,  409. 
Barling  V.  Peters.   356,  463. 
Barnes  v.  Scott,  154. 


TABLE    OF    CASES. 


23 


Barnes  v.  Gordon,  468. 

v.    Haves,  59,  269. 

v.  Light,   374. 

v.  Treat,   315. 

v.  Zoereher,    333,    340. 

Barnett  v.   Bull,  317. 
Barrett  v.  Churchill,  461. 

v.  Feeney,  41S. 

v.  Furnish.    281,   282. 

v.  McAllister,   59. 

. —  v.  Sterans,  350. 

v.  Wilson,    343. 

Barrick   v.   Horner,    187. 
Barron   v.   Mullen,   459. 
Bartee  v.  Engles,  335. 

V.  Tompkins,  382,  461. 

Barth  v.  Bank,  286. 
Bartlett  v.  Judd,   489,   490. 
Bartholomew  v.  Warner.   341. 
Barton  v.  Hunter,  368. 

v.  Sanders,   113,   140. 

Bassett  v.   Daniels.  381. 

v.  Lockhart.    461. 

v.  Sherrod,   419. 

Bates  v.   Gage,   142. 

v.  Will  aid,    313,   37G. 

Battle  v.  Guedry,   269. 
Baugh  v.  Baugh,   200. 
Baumann  v.  Franse,  343. 
Bawry  v.  Ellis,  331. 

Bay  v.  Gilliland,  413. 
Baylev  v.  Greenleaf,  11. 
Beach  v.  Atkinson,  100,  146. 

v.  Beard,  113. 

v.  Dennis,  280. 

Beale  v.  Botetout,  285. 
Beam  v.  Johnson.   355. 
Beamer  v.  Winter,  331. 
Bean  v.  HofYendorfer,  436. 
Beard  v.  Dansby,  500. 
Bearson  v.  Jamison,  299. 
Beattie  v.  Wilkinson,  107. 
Beaupre  v.  Brigham,  22,  92,  125. 
Beauregard    v.    New    Orleans,    18, 

233. 
Beckett  v.  Cuenin,  48,  106,  107,  183. 
Beebe  v.   United  States,   276. 
Beecher  v.  Baldy,   343. 
Beeler  v.   Bullitt,   199. 
Behymer  v.  Wadloh,  185. 
Beidler  v.  Freidler,  397. 
Belknap  v.  Charlton,  49 
Bell  v.   Flaherty,   457. 

v.  Good,  130. 

v.  Green,    335. 

v.  Love,  213. 

v.  Olmstead,   445. 

v.  Taylor,    340,    358. 

Bellande,  Succession  of,  99,  186,  433. 
Bellingall  v.   Duncan,   296. 


Bellas  v.  McCarty,  420. 
Bellamy  v.  Guhl,  242. 
Belmont  v.  Carnen,  113. 
Benbow  v.  Boyer,  457. 
Bennefield   v.  Albert,   180,    L81. 
Bennett  v.  Caldwell.  484. 
-  v.  Mattingley,  27. 

V.     (  >\\  (II.      - 


Bennington  v.  Reed,  70. 

Benners  v.  Reinhart,  303. 

Bennitt    v.    Mining    Company,    12, 

23,  189. 
Benny  v.  Clein,  291. 
Kent   v.  Graves,  5  I. 
Bentley  v.  Long,  484. 
Benton  v.  Hatch,  289,  373,  439. 
Benz  v.    Hines, 
Bergman,   Ex    parte,   4:27. 

v.  Hutcheson,  199,  450. 


Berkely  v.  Judd.   167. 
Bernhart    v.    Brown,    97,    179,    445. 
Berrian  v.   Rogers,   130. 
Berroth  v.   McElvain,  101. 
Beverly  v.  Burks,  54. 
Berry  v.  Griffith,  314. 
-  v.  Lovi,  400. 
Young,   400. 


Bethel   v.    Bethel,   243. 
v.  Sharp,  368. 


Bettison  v.  Budd,  415,  418. 

Bewley  v.  Craves.  432. 

Bickerstaff   v.    Bellinger,    292. 

Bickley  v.  Riddle,  459. 

Bigelow  v.   Booth,   277. 

v.  Loan  &  Trust  Company, 


56. 


v.  Stearns,  149. 


Bingham  v.  Jones.  134,  22C. 
Birch   v.    Bates,   325. 
Birchall  v.  Griggs,  445. 
Bird  v.  Norquist,   129. 
v.  Smith,  461. 


Bishop  v.  Freeman,  100,  146. 
v.  O'Conner,    459,    482,    4S4, 


485. 
Bissell  v.  Mooney,  376. 
v.   Spring  Valley  Township, 

197. 
Black  v.   Dressier,  249. 
v.  Walton,  458. 


Blackburn  v.  Boland,  216. 
v.  Clarke,    484. 


Blackman  v.  Baumann,  254,  316. 
Blackmore  v.  Baker,  467. 
Blackwell    v.    Townsend,    227,    245, 

344,  440. 
Blair  v.  Chamberlain.  206. 
-  v.  Sennet  t.    186. 
v.  Tuttle,   81. 


Blaisdell  ex  rel.   v.  Billings.   36,  39. 


24 


TABLE    OF    CASES. 


Bleidon   v.    Coal    &     Mining     Com- 
pany,  134. 
Blagden  v.  Broden,   118. 

v.  Douglass,  161. 

Blanc  v.  Mining  Company,  95,  152. 
Bland  v.  Bowie,  469. 

v.  Fleeman.    362. 

v.  Muncaster,  320,  323.  361. 

386. 

Blanks  v.  Rector.  2S1. 
Blanton  v.  Carroll,   61.   181. 

v.  Morrow,  331. 

Blanz  v.  Bain,  288. 
Blashfield  v.   Smith,  278. 
Blatchford  v.  Conover.  13.  258,  41S. 
Bliss  v.  Insurance  Company.  355. 
Block  v.   Henderson,   54. 
Blodgitt  v.  Hitt,   72,  15S,  235.   397. 

481. 

v.  Hobart,    492. 

Blood  v.   Haman,   369,   373. 

v.  Light.  415,  416. 

Bloom    v.    Burdick.    162,    215,    223, 

235.  248. 
Bloomington  v.  Brokow,  266. 
Blossom  v.  Railway  Company,  1,  8, 

295,  403,  408. 
Blount  v.  Davis.  408. 
Blumberg  v.  Birch,  104. 
Blythe  v.  Dargin,  4S9. 
Board  v.  Fahlor,  503. 

v.  Markel,   4:;2. 

Bobb  v.   Barnum,    389,   467. 
Bodkin  v.  Merit.  470.   4S5. 
Boehm  v.  Botsford,   385. 
Bogert  v.  Bell,  364. 
Boggs  v.  Fowler,  458. 

—  v.  Hargraves.   382,   461. 

v.  Howard,  31. 

Bogle  v.  Bloom,  267.  268. 
Bolgiano  v.   Cooke.  3.   295. 
Bolivar  County  v.  Coleman,  432. 
Bollinger  v.  Chouteau,  445. 
Bompart  v.  Lucas,  216. 

Bond  v.  Montgomery,  457,  4S1,  4S7. 

v.  Ramsey,   459. 

v.  Wilder.   272. 

Bonnell  v.  Roane,  418. 
Bonner  v.   Lessley,  479. 
Boon  v.  Bowers,  505. 
Boone  v.   Moore,  408. 
Boor  v.   Lowry,    168. 

Boorum  v.  Tucker.  459,  466,  467. 
Boos  v.  Morgan,  202,  263,  289,  291. 

439.  460. 
Boren  v.  McGhee,  290. 
Boring  v.   Lemmon,   405. 
Borders  v.  Hodges,    157.  473.  4S5. 
Borland  v.  Kingsbury,  445. 
Boro  v.  Harris,  459. 


Bosbv  v.  Burrow,  179. 

Boss 'v.  Obry,   490. 

Bostikk  v.   fceizer,  331,  342,  422. 

Boswell  v.  Dickinson,  109. 

Boswick  v.  Skinner,  433. 

Botsford  v.  O'Conner,  153,  158,  401. 

428,   430,   438. 
Bouldin  v.  Swart,  358. 
Bowar   v.    Railway    Company,    273, 

276,  285. 
Bowen  v.  Bond,  159,  229,  231.   247. 
-  v.  Jones,  298. 

v.  Wickersham.  491,  4'92. 


Bowman  v.  Knott.   325. 
Box,  In  re,  462. 
Boyce  v.  Sinclaire,  495. 
v.  Strother,  459. 


Boyd  v.  Blankman,  29,  31,  364. 

-  v.  Ellis,  413,  422. 

v.  Fletcher,  66. 


Boykin  v.  Cook,  382,  453,  461. 
Boyle  v.  Maroney,  208,  280. 
Boyles  v.  Boyles,  452. 
Boynton  v.  Foster.  141. 
Bozza  v.  Rowe,  1.  2.  33. 
Brace  v.  Shaw.  424. 
Bradford  v.  Larkin,  1S4. 
Bradshaw  v.  Atkins,  491. 
Brady  v.  Burk.  141,  196. 
Bradley  v.   Jamison,  431. 
v.  Kesee,  314,  315. 


Bradstreet  v.  Xeptune,  196. 
Bragg  v.  Gaynor,  122. 

v.  Thompson,    445. 


Braley  v.   Simonds,   34S.   349. 
Bramstead  v.  Ward,  148. 
Branch  v.   Branch.   27s. 

v.  Foust.  321.  356.  436. 


Brandies  v.   Cochrane.   422. 
Brandon  v.  Brown.  477.  4s  1. 
Bray  v.  Adams.  440. 

-  v.   Marshal,    376. 
v.  McClury,    445. 


Brebner  v.  Johnson,  206. 
Breckwolt  v.  Morris,  174. 
Bree  v.  Bree,  240. 
Brcssler  v.  Martin.  459.  472.  4s3. 
Brewer  v.  Herbert.  382. 

-  v.  Nash,  473,  475,  479. 
v.  Sibley,  84. 


Brewing  Company  v.  Hirsch,  135. 
Brenham  v.  Davidson,   505.   506. 
Brickhouse  v.  Sutton.  149.  181,  495. 
Bridge   Company   v.    Packing   Com- 
pany, 108. 
Bridgeman  v.  McKissick,  208. 
Bridges  v.  Supervisors,   146. 
Brigance  v.  Evans,  315.  354. 
Brigham  v.    Faverweather,  95. 
Bright  v.  Boyd,  4S9,  490. 


TABLE    OF   CASES. 


^5 


Brindley,  Appeal  of,   154. 
Brintcn  v.  Seevei's,  494. 
Brisbane  v.  McCrary,  408. 
Britton  v.  Larson,  107. 
Broadwater  v.   Richards,  245. 
Brock  v.  Rice,  383. 
Brockenbrough    v.    Brockenbrough, 

207. 
Bromley  v.  Goodrich,  27.  28. 
Brooklyn    Trust    Company    v.    Bul- 

mer,  7s- 
Brooks  v.  Radcliff,  408. 

v.  Rooney,  321,  415. 

Brosmer  v.  Kelsey,  38. 
Brown  v.  Bank,  421. 

v.  Brown,   479. 

V.  Butters,   332. 

v.  Campbell,      GO,     95,     108, 

v.  Christie,  329,   397,  399. 

-  v.  Dickson,  314,  315. 

V.  Duncan.   267,  272. 

v.  Gilmore,   380. 

v.  Goble,   105. 

v.  Gray,  457. 

v.  Irwin,   58. 

v.  Lane,  314. 

-  v.  Maher,   452. 

v.  McKay,    424. 

v.  Pratt,  314,   315,   331. 

v.  Railway    Company,    111, 

US.    183. 

v.  Snell,  350. 

v.  Wilson,  194. 


Bullard  v.  McArdle,  201,  262,  2S9, 
294,  373,  439. 

v.  Woods,  94. 

Bullen  v.  Dawson,  357. 
Bullock  v.   Bullock,  175. 
Bumberger  v.  Clippinger,  466. 
Bumb  v.  Gard,  326,  393. 
Ilium  v.  Ahl,  199. 

v.  Lindsay,  206. 

v.  Todd,    317. 


152. 


Bunting  v.  Gilmore,  470,  485. 
Hunts  v.  Cole,  368. 
Bunce  v.  Bunce,  239,  319. 
Bunch  v.  Spotts,  100,  146. 
Bunker  v.  Rand,  358. 
lunge  v.  Brown,  2s2. 
Burdette  v.  Colgan,  83. 
Burdick  v.  Burdick,  351. 
Burden  v.  Taylor,  8. 
Burgess  v.  Kirbv,  161. 
Burk  V.  Bank,  410. 

v.  Stockley,  168. 

Burke  v.  Daly,  366. 

v.  Johnson,  206. 

Burkett  v.   (lark,   312,  332. 
Burks  v.  Bennett,  139. 
Burnham  v.  Doolittle,  84. 
Burns  v.  Hamilton,  461,  469. 

-  v.  Ledbetter,   382,  458,   461, 


Brownfield  v.  Dyer,   129. 
Browning  v.  Smith,  427. 
Brumbaker  v.  Jones,  320,  396. 
Bruce  v.  Doolittle,  142. 

■  v.  Nicholson,   205. 

Bruckman  v.  Taussig,  180,  429. 
Brumbaugh  v.  Zollinger,   343. 
Bruschke  v.  Vereign,  60. 

■ v.  Wright,  479. 

Brush  v.  Ware,  486. 
Bryan  v.  Bauder,  218. 

v.  Publishing  Company,  110, 

122. 

Bryant  v.  Fairfield,  292. 

v.  Johnson,  276. 

v.  Whitcher,  341,  435. 

Bryson  v.  McCreary,  497. 
Buchanan  v.  Tracy,  415,  416. 

—  V.  Bilger,  425,  426. 
Buckmaster  v.   Carlin,  369. 
Buckner  v.  Wood.  317. 
Buffum  v.  Dean,  341. 
Building  Association  v.  Scott,  478. 

v.  Harden.   59,  428. 

Bull  v.  Gilbert.  279.  280. 

v.  Harris,  266. 


470,  4s4. 
Burr  v.  Seymour,  107. 
Burrell   v.  'Railway  Company,   211, 

386,  473. 
Burris  v.  Kennedy,  29,  30,  218,  219, 

363. 
Burrus  v.  Burrus,  70. 
Bustard  v.  Gates,  70. 
Burwell   v.   Herron,   341. 
Burt  v.  Hasselman,   265,  415. 
Burton  v.  Delaplaine,  287. 

v.  Perry,   191. 

v.  Spires,  361,  368. 

Busey  V.  Tuck,  296. 
Bush  v.    Lindsay,  433. 
Butler  v.   Fitzgerald,  457. 

-  v.  Haynes,   280. 

v.  Johnson,  224.  247. 

Butterfield   v.   Walsh,   269. 
Buzzell  v.  Hardy,  343. 
Bybee  v.  Ashby,  270,  296. 
Byers  v.  Fowler,  259. 

P.'vnum  v.  Govan.  280,  438,  458. 
Byram  v.  McDowell,  427. 
Byrne,  In  re,  216. 
Byrnes  v.  Sexton,  2S0. 


Cahill  v.  Bassett,  246. 

Cain  v.  Woodward,   303,   304,  449. 

Cake  v.  Cake,   355. 


26 


TABLE    OF    CASES. 


Cale  v.  Shaw.  382. 
Caldwell  v.  Blake.  376. 

v.  Caldwell.   362. 

v.  Martin,  385. 

v.   Palmer.  484. 

v.   State.    40. 

v.  Trusdale,  343. 

v.  Walters,   174. 

Calhoun  v.  Leary,  422. 
Callaghan  v.  Fluker,  211. 
Callais  v.  McLeod,  2?--. 
fallen  v.  Elliston.  48,  194. 
Cambrelling  v.  Purton,  406. 
Camberford  v.  Hall,  456. 
Camden  v.  Mahew,  467. 

v.  Plain,  1S6.   231.  259,  391. 

433. 

Cameron  v.  Logan.  459. 
Campe  v.  Saucier,  468. 
Campau  v.  Barnard,  313. 

■ v.  Gillett,  154.  247. 

Campbell  v.  Chandler.   142. 

v.  Harmon.   157,  234. 

v.  Iron   Works.   352. 

v.  Johnson,    17. 

v.  Knight,    316. 

■ v.  Leonard,  437. 

v.  West,  58. 

Campbell  Co.  v.  Mader,  65,  SO. 
Campfield  v.  Johnson,  342. 
Canal  Company  v.  Gordon.  23. 
Cantelou  v.  Whitley.   156,  233.  443. 
Cantwell  v.  McPherson,  404. 
Carden  v.  Lane.  369. 

Carder  v.  Culbertson,  402,  415. 

■  v.  Carlisle.  339. 

Carlyon  v.  Eade.  354. 
Cannichael  v.  Strawn,  416. 
Carnahan  v.  Pell,  271. 

v.  Yerkes,  410.  436. 

fames  v.  Mitchell,   110,  431. 
Carney  v.  Emmons.  422. 

Carney.    325. 

Bank,  274,  276. 
v.  Roe.  315. 
v.  Russell,  359. 
v.  Shepardson,  82. 
v.   Sherfy.  407. 
v.    SI  dwell.  263.  285. 
Bank,  80. 

v.  (air.   L29,  383. 

v.  Coal  Company,  95. 

v.   Hunt.    too. 

Carrigan  v.  Drake,  237. 

v.  Schmidt,  127.  356. 

Carrol]  v.  Olmstead,  506. 
Carson  v.  Suggett,  292. 

I  'arver  v.  Carver,  61,  86. 

v.  Lasalette,  206. 

v.  Spence,  355. 


Carpenter 


<  'a  it 


Carter  v.  Carrigan,  169. 
—  v.  Penman,  422. 
v.  Walker,  421. 


Cascaden  v.  Cascaden,  357. 
Case  v.  Beauregard,  197. 
x.  Gregory,  259. 


-  V.  Hannahs.   432. 
v.  Plato,  277. 


Cashion  v.  Fania,  459. 
Cashman  v.  Henry.  174. 
Cassidy  v.   Woodward,   10S. 
Castleman  v.  Relfe,  ; 
Casey  v.  Stewart,  144. 
Cates  v.  Pickett,   77. 
Catron  v.  Railway  Company.  50. 
Cattle  Company  v.  Boon,  149. 
(  auldwell  v.  Curry,  432. 
Cavanaugh  v.  Smith,  79. 
Cayce  v.  Powell,  197. 
Cazet  v.  Hubbel,  467. 
Cecil  v.   Cecil,   251. 
Center  v.  Billinghurst,  315. 
Cerro  Gordo  Co.  v.  Wright.   54. 
Chadbourne  v.  Radcliff,  452. 
Chaffee  v.  Hooper.   146. 

— ■ v.  Telegraph  Company,  82. 

Challis  v.   Wise.   388. 
Chamberlain  v.  Chamberlain,  219. 
Chambers  v.  Cochran,  459. 
-  V.  Hodges.   139.   450. 

V.  Jones,  238,  300.  47>.  4^4, 


4-5. 


v.  Perry,  343. 


Chamblee  v.  Taroox,  356. 
Chandler  v.  Burdett,  315. 

v.  Hanna.  22. 

■ v.  Moulton,  365. 

Chapman  v.  Brooklyn.  469. 

v.  Harwood,  34.  327.  410. 

Champney  v.  Smith.  435. 
Chapin  v.  McLaren,  263.  289,  439. 
Chardevoyne  v.  Lynch.  230. 
Charles    v.   Morrow,   106,   107.     122 

134. 
Chase  v.  Dana,  202. 

v.  Gas  Company.  265. 

v.  Joiner.  468. 

v.  Ross,  210. 

v.  Van  Metre,  5.  381. 

•  hastian  v.  Phillips.  315. 
Chatterton  v.  Young,  174. 
Chaiivin  v.  Yaliton,  36. 

(  hauvennes  v.   Priestley,   40. 
(  heely  v.  Clayton.  67. 
Cheney  v.  Harding,  77. 
(  hesebro  v.  Barme,  272. 
Chestnut  v.   Shane,  495. 
Chew  v.  Hyman.  3. 
Chichester  v.  Candle.  277. 
Childress  v.  Hurt,  403. 


TABLE    OF    CASES. 


•r. 


Childs  v.  Hayman,  153. 

v.  Lauterman,  59,  82,  172. 

Chilson  v.  Eleeves,  197. 
Christ  v.  Flanagan,  281. 
Choice  v.  Charles,  343. 
Church  v.  Crossman,  88. 
Cicero  Township   v.   Pickens,  427. 
City  of  Pekin  v.  McMahon,  340. 
Claflin  v.  Dunne,   167,   170. 
Clark  v.  Boyle,  12. 

v.  Bond.    290. 

v.  Bryan,  92. 

v.  Costello,  380. 

v.  Flint,  198. 

v.  French,  315. 

v.  Hayes,  506. 

v.  Hillis,    ISO,   235. 

v.  Kraker,  358. 

v.  Miller,  265.  , 

v.  Reinig,  274.* 

v.  Sawyer.     296,     414,     415, 

41S. 

v.  Thompson,  158,  234,  238, 

242,  401,  428,  437. 

v.  Van  Surlay,  506. 

v.  Watson,   424. 

Clay  v.  Kagelmacher,  405. 
Clayton  v.  May,   269. 
demons  v.  Cox.  378. 

V.   Bounds.  419. 

Clendenning  v.  Ohl,  491. 
Cleveland  v.  Hopkins,  90. 

v.  Simpson,  207,  209. 

v.  Tufts,  292. 

Click  v.  Burris,  381,  382. 
Clingman  v.  Hopkie,  2S0. 
Clint  v.  Catron,  454. 
Clipson  v.  Villars,  354. 
Cloud  v.  Pierce  City,  07. 
dusky  v.  Burns,  505,  506. 
(lute  v.  Emerick,  203.  289,  373. 
Chimin  v.  McLaughlin,  475. 

v.  Reynolds,  107. 

Coad  v.  Coad,  82. 

Cobb  v.  Garner.  72,   156,   159. 
Cobbey  v.  Wright    164. 
Cochran  v.  Loring,  445. 

v.  Van  Surlay,  374,  506. 

Cockey  v.  Cole,  379. 

v.  Milne,  207. 

Cofer  v.  Miller,  260. 
Coffin  v.  Estes,  446. 

v.  Freeman,    281,    282,    304, 

336.  , 

Coffrode  v.  Judge,  56. 
Cohee  v.  Baer,  172,  428. 
Coit  V.  Haven,  07,  194. 
Colcord  ex  rel.  v.  Young.  139. 
Coleman  v.  Freeman,  23. 

v.  McAnulty,  167. 


Coleman's  Appeal,  56. 
Colgan  v.  Keen,  499. 
College,   In  re,   44. 
Collier  v.  Stonbough,  332. 
Widham,  282. 


Collins  v.  Ball,  401,  442. 

v.  Dixon,  313. 

v.  Hydon,  189. 

v.  Montgomery,  331. 

v.  Smith,  321,  370. 


Colt  v.  Colt,  161,  189. 
Haven,  429. 


Comegys  v.   Emerick,  363,  364,    128. 
Commonwealth  v.  Magee,  303. 
v.  Warwick,  499. 


Comstock   v.  Crawford,  230,  432. 
Conger   v.    Babcock,    408. 
v.  Converse.  406. 


Congden  v.  Chilcote,  189. 
Conkrite  v.   Hart,  315. 
Connell  v.  Galligher,  422. 
Connolly  v.  Rue,  356. 
Conover  v.  Musgrove,  260,  380. 
Conrad  v.  Brown,  81. 
v.  Dardee,  302. 


Conway  v.  Cable.  497. 
Convers  v.   Mercies,   492. 
Cook  v.  Darling,  194. 

v.  Timmins,  331. 


Cookerly  v.  Duncan.  495. 
Cooke  v.  Waters,  358. 
Cooley  v.  Wilson,  259,  320,  323. 
Coombs  v.  Gordon,  341,  435. 
Coon  v.  Coon,  211. 
Cooper  v.  Hepburn,  468. 

v.  Horner,  374. 

v.  Jacobs.  269,  272. 

-  v.  Reynolds.  52,  10S,  196. 

v.  Sutherland,   45,   183,   185., 


316,  453. 


v.  Galbraith,  14. 


Coppinger  v.  Rice,  179. 
Corbitt  v.  Clenny.  375.  410. 

v.  Timmerman,  59,  82,  91. 


Corbin  v.  Pearce,  303. 

Corgile  v.  Fernald,  505. 

Corwith  v.  Bank,  270. 

Cornwall  v.    Bank,   119. 

Corley  v.  Anderson,  212. 

Corwin    v.    .Merrill,    158,     185,    223, 

235,  243,  441. 

V.  Shoup,  475. 

Costle  v.  Noyes,  189. 

Cothran  v.  Knight,  428. 

Cotton  v.  Holloway,   215,  218,  220, 

441. 

v.  Rupert,  106,  116,  44.'..  475. 


Cottrell  v.  Thompson,  21. 
Courtney  v.  Parker.  206. 
Covey  v.  Noggle,  100. 


38 


TABLE    OF    CASES. 


Covington  v.  Ingram,  458. 
Cown  v.  Lowry,  276. 
Coward  v.  Chastian,  305. 
Cowdin  v.  Cowdin,  384. 
Cowen  v.  Toole,  186. 

v.  Withrow,    438. 

Cowgill  v.  Long,  500. 
Cox  v.  Band,  333. 

v.   Story.  242: 

Coyne  v.  Souther,  457. 
Crabtree  v.  Whitselle,  301. 
Craemer  v.  Holbrook,  475,  482. 
Craft  v.  Merrill,  263,  289. 
Craig  v.  Fox,  315. 

v.  Fraser,  92,  445. 

v.  Stevens,  358. 

Crane  v.  Guthrie,  348,  349. 

v.  Kimmer,  429. 

Crary  v.  Sprague,  361. 
Craven  v.  Bradley,  190. 
Crawford  v.  Ginn,  437. 
Crenshaw  v.  Julian,  187,  342. 
Creps  v.  Baird,  457. 
Cresson  v.  Stout,  331. 
Crippen  v.  Chappel,  458,  4S1. 
Crocker  v.  Bellange,  27. 
Crombie  v.  Little,  10S,  11'.). 
Cromwell  v.  County  of  Sac,  197. 

v.  Hull,  43. 

v.  MacLean,  478.  503. 

Crosley  v.  Arkwright,  29. 

v.  Hutton,-  170. 

Cross  v.  Armstrong.  95. 

V.  Knox,  387,  397. 

v.  Ware.  343. 

Crouch  v.  Eveleth,  299. 

(muter  v.  Crouter,  78,  86,  103,  135, 

4(31,  466. 
Crow  ell  v.  Johnson,  384. 

v.  McConkey,  474. 

Cruikshank  v.  Luttrell,  375,  410. 
(rump  v.  Ingersoll,  362. 
Cruzen  v.  Stephens,  128. 

( ludabeck  v.  Strong,  59,  135. 
Cully  v.  Shirk,  425. 
Culver   v.    Hardenbaugh,    215,   219, 
441. 

v.    Phelps,   181,   370. 
Cuminings,  Appeal  of,  459. 

v.  Cummings,  251. 

-  v.   Pfouts,  332. 

-  v.    Powell,  27,  30. 

v.  Simpson,  245. 

v.   Stark,  38. 

-  v.  Talior,   92,    111,   122,   1S3. 
445. 

Cunningham  v.  Anderson,  234.  245. 
161. 

v.   Lurk.  280. 

v.  Cassidy,  358. 


Cupp  v.  Wesch,  495. 
Curd  v.  Lockand,  322. 
Curley,   Succession  of,   335. 
Curran  v.  Kuby,  159,  230,  247,  252. 
Curriden  v.  Railway  Company,  4:2:.'. 
Currie  v.  Franklin,  186,  229,*433. 
v.  Stewart,  317. 


Curtis  v.  McCullough,  271. 

v.  Millard,   404. 

— ■ v.  Norton,  381,  412. 

v.  Wilcox,  138. 


Cutts  v.  Hoskins,  179. 

D. 

D'Arusement  v.  Jones,  150. 
Dady  v.  Brown,  506. 
Daily  v.  Sharkey,  187. 
Dale  v.  Insurance  Company,  49£ 
-  v.  Metcalf,  501. 
v.  Shirley,  17. 


Dallas  v.  Peacock,  138. 
Daly  v.  Ely,  400. 
'■ —  v.  State,  272. 
-,  Appeal  of,  349. 


Damp  v.  Dana.  21. 
Dancy  v.  Strickland,  372. 
Daniel  v.  Leitch,  383. 
Daniels  v.  McBain,  333. 

v.  Watertown,    494,    502. 


Danby  v.  Daws,  215,  216. 
Danley  v.  Rector,  457,  459. 
Darlargue  v.  Cress,  473. 
Darvin  v.  Hatfield,  382. 
Davenport  v.  Covil,  492. 
v.  Young',  506. 


Davis  v.  Bank,  174. 

v.  Brandon,   407. 

v.  Burke,  208. 

v.  Davis,  200,  272. 


—  v.  Day,  343. 

-  v.  Drew,   313. 

—  v.  Fisk,  142. 

—  v.  Helbig,  506. 

—  v.  Hudson,     186,     252,    254, 


256,  316.  324.  429.  455. 

v.  Hughes.  362. 

—  v.  Kline.  272,  414. 

v.  Lumber  Company,  136. 

v.  Men  ash  a,  499. 

v.  Railway  Company,  38. 

—  v.  Robinson,  107,  130,  181. 

-  v.  State.  494. 

— ■  v.  Walkabee.  60,  445. 

-  v.  Walker,  179. 


Davidson  v.   Bates,   253,    319,     399, 
426. 

-  v.   Frew,  423. 

■  v.  Johonnot,   505,   506. 

v.  Kochler.  505. 


TABLE    OF   CASES. 


39 


Davidson  v.  McMurty,  129. 
— v.  New  Orleans,  30. 

v.  Young,  473. 

Daw  ley  v.  Brown,  382. 
Dawson  v.  Daniel,  274. 

v.  Goodwin,  490. 

-  v.  Helmes,     211,     245,     256, 
386,  47:;. 

v.  Litsey,  336,  337.  380. 

Day  v.  Rice,  281,  315. 

— ~—  v.   Sharp,  283. 

Dean  v.  Morrison,  334. 

Deans   v.   Wilcoxen,   154,    230,   231, 

247. 
De    Bardenlaben    v.    Stoudenmeier, 

212. 
De  Chastellux  v.  Fairfax,  499. 
De  Corver  v.  Dolan,  113. 
Defelitz  v.  Pico,  343. 
Deford  v.  Mercer,  393.  473,  475. 
De  Haven,  Appeal  of,  420,  464,  465. 

v.  Londell,  423. 

De  Jarnett  v.   Verner,  332. 
Delahy  v.  McConnell,  409. 
Delaplaine  v.  Lawrence,   358. 
Delany  v.  Knapp,  369. 
De  Loach  v.  Bank,  354,  419. 

v.  Bobbins,   272,   285. 

De   La  Montanya  v.    De   La   Mon- 

tanya,  50. 
De  Meli  v.  De  Meli,  50. 
Dement  v.  Thompson,   314. 
Demestre,  Succession  of,  426. 
Den  v.  Mulford,  258. 

v.  Pilhower,  13. 

v.  Zellers,  253,  461. 

Denman  v.  McGuire,  106. 
Dennerlein  v.  Dennerlein,  464. 
Dennis  v.  Moses,  334. 

— v.  Winter,  398. 

Denny  v.  Mattoon,  499. 
Denton  v.  Noys,  90. 
Dentzler  v.  Waldin,  495. 
Denver  v.  Middough,  197. 
Deputron  v.  Young,  382,  387. 
Dequindre  v.  Williams,  319,  45S. 
Desplate  v.  St.  Martin.  334. 
De  Sepulvada  v.  Baugh,  419. 
Dewey  v.  Field,  476. 

v.  Linscott,  384. 

v.  Peeler,  269. 

v.  Willoughby,  327. 

Devine  v.  Harkness,  361,  368,  486. 
Devlin  v.  Commonwealth,  155. 
Deyton  v.  Bell,  159,  247. 
Dial  v.  Freeman,  422. 
Diamond  v.  Turner,  408. 
Dick  v.  Foraker.  107.  183. 
Dickens  v.  Carr,  505. 

v.  Crane,  387,  400. 


Dickens  v.  Long,  220. 
Uirkeii'ian  v.  Burgess,  327. 
Dickerson  v.  Talbot,  412. 
Dickinson  v.  Bowers,  281. 

v.  Beyer,  457. 

-  v.  Collins,  203. 
v.  Kinney,  422. 


Dickison  v.   Diekison,  181,  23S. 
Dickey  v.  Beatty,  491. 

Chicago,   137. 


Dikeman  v.  Wartek,  82. 

Dillard  v.  Iron  Company,  50,  181. 

Dillon   v.  Hiller,   108. 

Dills   v.   Jasper,   8. 
Dingman  v.  Myers,  276. 
District  v.  District,  473. 
v.  Goldman,   185. 


Dixon  v.   Doe,  420. 
Doan  v.  Baley,  271. 

Dobbins  v.  Bank,  286. 
Dodd  v.  Nilson,  458,  461. 

v.  Templet  on,  3.03. 

Doe  v.  Anderson,  70,  158.  238. 

v.  Bowen,    72,   86,    158,   235, 


443. 


v.  Douglass,  506. 

v.  Harter,  285. 

v.  Henderson,  248. 

v.  Ingersoll,   263. 

v.  McKinnie,  44!). 

v.  Rue,  375,  416. 

v.   Smith,  359. 

Doheny  v.  Dynamite  Company,  422. 
Donahue  v.  McNulty,  418. 
Donnebaum  v.  Tinsley,  405. 
Dooley  v.  Bell,  213. 
Doolittle  v.  Holton,  184,  186. 
Dore  v.  Dougherty,  185. 
Dorr  v.  Rohr,   140. 
Dorrance  v.  Raynsford,  38,  ISO,  190, 

215,  226,  235,  401. 
Dorsett  v.  Gerrard,  327. 
Douglass     v.    Insurance    Company, 

445. 

Whitney,   272. 


Dougherty  v.  Linthicum.  350. 
Doughtry  v.  Thweatt,  161,  234. 
Dow  v.  Blake,  200. 
Dowell  v.  Applegate,  197. 
Dower  v.  Johnson,  55. 
Downer  v.  Smith,  179. 
Downing  v.   linger,  212. 
Doyle  v.  Wade."  378. 
Drainage  District,  In  re,  55. 
Drake  v.  Ogden,   146. 

v.   llensliaw,   172. 

-  v.  Ireland,  187. 


1  Iraper  v.  Bryson,  321. 
—  v.  Nixon.  263. 


Drawdy  v.  Litchfield.  272. 


30 


TABLE    OF   CASES. 


Drefahl  v.  Tuttle,  263,  289. 
Dresbach  v.  Stein,  5,  17,  459. 
Dry  Goods  Company  v.  Fuller,  ISO, 

185. 
Drysdale,  Appeal  of,  342,  362. 
Dubois  v.  McLean,  506. 
Dubuque  v.  Harrison,  10. 
Duckworth  v.  Vaughn,  369. 
Duell  v.  Pattee,  206. 
Dufou-  v.  Camfranc,  416,  484. 
Bugger  v.  Tayloe,  389. 
Dulaney  v.  Tilgham,  495. 
Dull  v.  Blum,  354. 
Dunagan  v.  Webster,  343. 
Duncan    v.    Gainev,    181,    481,    4S2, 

484. 

v.   Stewart.  150. 

-  v.   Veal,  222. 
Dunham  v.  Cox,  208. 
Dunlap  v.  Byers,  428, 

v.  Cody.  81. 

Dunn  v.   Stevens,   343. 
Dunning  v.  Driver.  222. 
Durham  v.  Bostick,  343. 

v.  Heaton,    259. 

Dunn  v.  Fish,  359. 
Duval  v.  Waters,  34,  208. 
Duprey  v.  Moran,  404. 
Durett  v.  Briggs,  289. 

v.  Hulce,  204. 

Dutcher  v.   Hobbey,    188,   361,    479. 
Dwight  v.  Blackman,  364,  454. 

v.  Lumber  Company,  478. 

Dwark  v.  Moore,  422. 

Dyer  v.  Leach,  434. 
Dyke  v.  Wells,  174. 

E. 

Earle  v.  Earle,   142. 
Eason  v.  Sehettler,  208. 
Eastman  v.  Settler,  206. 
Eatman  v.  Eatman,  162. 

v.  Linn,  446. 

Eaton  v.  White,  300,  379. 
Eberstein  v.  Oswalt,  250,  34S,  349. 
Eddy  v.  Coldwell,  263,  285. 
Edmonson  v.  Hooks,  419. 

Edney  v.  Edney,  462. 
Eads  v.  Stephens,  331. 
Edwards  v.  Baker,  246. 

v.  Halbert,  259. 

v.    Inula  ham,    303. 

v.  Moore,  231. 

v.   Smith.   56. 

v.  Tipton,  406. 

v.  Toomer,  92,  445. 

v.  Whited,  169. 

Egan  v.  Council  v.  449. 
Eichoff,  In  re,  ISO,  194. 


Eisenmenger  v.  Murphy,  172. 
Elam  v.  Donald.  361,  484,  4S6. 
Filet  v.  Paxon,  310. 
Filing  v.  Harrington,  484. 
Elliott  v.  Bastian,  167. 

v.  Hart,  272. 

-  v.  Holbrook,  286. 

v.  Knott,    280,    282,    313. 

—  v.  McCormack,  61,  104,  108, 

123. 

v.  Piersell,  44. 

v.  Shuler,  18. 

Ellis  v.  Ellis,  481. 

v.  Peck,  29. 

v.  Railway  Company,  496. 

Ellsworth  v.  Hall.  225. 

Elston  v.  Castor,  333. 
Eltzroth  v.  Ryan,  432. 
Elwood  v.  Northrup,  186,  237. 
Ely  v.  Tallman,  180.  ♦ 

Embury  v.   Connor,   498. 
Emeriek  v.  Gilman,  266. 
Emerson  v.  Sansome,  422. 
Emery  v.  Royal,  184,  432. 

v.  Vrooman,    385,    38S,    400. 

Emery  County  v.  Burreson,   346. 
Emmert  v.  Thompson,  47S. 
Emmett  v.  Yandes,  27. 
Fndicott  v.   Penny,  34. 

England  v.  Garner,  77. 
English  v.  Woodman,  251. 
Fnsworth  v.  King,  423. 
Eppinger  v.  Robinson,  259. 
Erwin  v.  Garner,  422. 
Esselman  v.  Wells,  290. 
Fssig  v.  Lower,  106,  130. 
Essinger  v.  Murphy,  61,  172. 
Estes  v.  Alexander,   32. 
-,  In  re,  208 


Ethel  v.  Nichols,  433. 
Ethridge  v.   Edwards,  290. 
Evans  v.  Ashby,  332,  354. 

v.  Ashley,  419. 

v.  Ball,  401. 

v.  Caiman,   303,   313,   449. 

v.  Ethridge.  264. 

v.  Johnson,  196. 

v.  Maurey,  450. 

v.  Robberson,   321,   418. 

v.  Snyder,  IS.  245,  421,  442. 

v.  Wilder,  406. 


Evers  v.  Watson,  386. 
Eversdon  v.  Mahew,  290. 
Everingham  v.  Braden,  404. 
Ewell  v.  Daggs,  29,  30,  31. 
Ewing  v.  Highby,  400,  40S. 
K\   parte  Bennett,  42. 

v.  Bigelow,  43. 

v.  Coehn,  44. 

v.  Grav,  44. 


TABLE    OF    CASES. 


31 


Exum  v.  Baker.  407. 
Eyerman  v.  Payne,  406. 


Fabel  v.  Boykin,  281. 
Fahey  v.  Mattu,  432. 
Fahlor  v.  Board,  503. 
Fairbanks  v.  Devtsreau,  343. 
Faison  V.  Johnson,  280. 
Falley  v.  Gribbing,  2:22. 
Fallon  v.  Schempf,  84. 

v.  Worthington,      393,     473, 

47G. 

Falls  v.  Wright,  46.  244,  388. 

Fambo  v.  Gantt,  310. 

Fanners'   Bank    v.    Bank,    104,    108. 

Fanning  v.  Krapp,  239. 

Faris  v.  Durham.  200. 

Farley  v.  Lea,  207. 

Farquhar  v.  Toney,  325. 

Farrar  v.  Dean,  216,  222. 

Farrington  v.  Duval,  374. 

Farrior  v.  Houston,  311,  418. 

Faull  v.  Cooke,  303,  400,  449. 

Faust  v.  Haas,  368. 

Feikert  v.  \\  ilson,  114. 

Fell  v.  Young,  72,  158,  218,  401,  443. 

Feller  v.  Clark,  446. 

Felton  v.  Felton,  355. 

Ferguson  v.  Crawford,  91,  294. 

—  v.  Oliver,  59,  81,  83. 

v.  Quinn,  259. 

v.  Smith,  71. 

v.  Teel,  429. 

v.  Williams.  496. 

Felert  v.  Engle,  100. 
Ferrell  v.  Hales.  207. 
Ferrier  v.  Deutchman,  424. 
Ferris  v.  Hayes,   174. 
Fetterman  v.  Murphy,   373. 
Fideldy  v.  Diserens,  384. 
Fidler  v.  John,  208,  355. 
Field  v.  Bland.  477. 

v.  Paulding.  265. 

Fifield  v.  Richardson,   272. 
Filkins  v.  O'Sullivan,  75. 
Finch  v.  Edmonson,  441. 

v.  Sink,  42S. 

Finlayson  v.  Peterson,  497. 
Finley  v.   Gautt,   263. 

v.  Robertson,   77,   238. 

v.  Smith,  139. 

Finneran  v.  Leonard,  194. 

First  National  Bank,  In  re.  272. 
Fisher  v.  Bush.  471. 

v.  Siekman,  235,  236,  475. 

Fischli   v.   Fischli,    192. 

Fisk  v.  Kellogg,  72,  158,  235,  443. 
Fitch  v.  Boyer,  429. 


Fitch  v.  Miller,  229,  231. 

v.  Wlutbeck,    212,   222. 


Fite  v.   Doe.   351. 

v.  Volmer,  125. 


Fitzpatrick  v.  Beal,  242. 
Fix  v.  Sissung,  100. 
Flandrow  v.  Hammond,  469. 
Fleming  v.  Durham,  466. 

v.  Hutchison,   360,   361. 

—  v.  Johnson,  386. 
v.   Powell,   405. 


Fletcher  v.  Holmes,  332. 

v.  McGill,  436,  437. 


Flint  v.  Phipps,  357. 
Florentine  v.  Barton,  18. 
Floyd  v.  Harding,  206. 
Flury  v.  Grimes,  362. 
Flynn  v.  Railway  Company,  84. 
Fogg  v.  Blair,  205. 
Foley  v.  Bitter,  208. 
v.  Kane,  358. 


Follett  V.  Hall,  207. 
Folsom  v.  Carli,  311. 
Foltz  v.  Wirt,  205. 
Foot  v.  Scwall,   152. 
Foote  v.  Richmond,  82. 
Forbes  v.  Darling,  271. 

v.  Halsey,  454. 

v.  Hyde,  119. 


Ford  v.  Walsworth,  223. 
Fore  v.  McKenzie,  469. 
Foree  v.  Stubbs,  458. 
Forman  v.  Carter.  44. 

v.  Hunt,  6,  14,  17,  258. 


Forrest  v.  Railway  Company,  79. 
Forster  v.  Forster,  503. 
Foster  v.  Birch,  319. 
-  v.  Clark,  492. 
v.  Mabie,  331. 


Foss  v.  Witham,  276. 
Foulk  v.   Colburn,  416. 
Fowler  v.  Frebein,  208. 

v.  Jenkins,   432. 

v.  Krutz,  355. 

v.  Lewis,   445. 

v.  Poor,  259. 

v.   Simpson,    181. 

Fowble  v.  Rayberg,  40(>. 

Fsankel  v.  Salter  field,  4S,  149,  181. 
Franklin  v.   Kelly,  43. 

v.  Merida,  272. 

Franks  v.  Lockey,  44. 
France  v.   Haynes,   474. 
Frances  v.  Wells.  142. 
Frazier  v.  Douglass,  82. 

v.    Moore.   414. 

v.  Pankey,  72,  158,  235.  241. 

v.  Steenrod,    219,    227,    236, 


44: 


v.  Zlios,  335. 


32 


TABLE    OF    CASES. 


Frederick  v.  Pacquette,  210. 
Freeman  v.  Alderson,  95,  152. 

v.  Thompson,   92. 

■ v.  Watkins,   32. 

Freiburg  v.  Isabell,  366. 
French  v.  Edwards,  203,  307. 

v.  Garnet,  491. 

v.  Hoyt,    72,    158,    235,    443. 

Fretwell  v.  Morrow,  406. 
Frevert  v.  Swift,  139,  451. 
Freydendall  v.  Baldwin,  199,  450. 
Fridley  v.   Sheetz,   459. 

Frink  v.  Roe,   325. 

Frisk  v.  Reigleman,   107,   110,   122. 

Fritts  v.  Camp,  164. 

Frizzle  v.  Veach,  408. 

Frost  v.  Atwood,  458,  481,  482. 

■  v.  Bank,  201,  263,  289,  294 

Fryer  v.  Rockefeller,  462. 

Fullerton  v.  Seifer,  355. 

Furgeson    v.    Jones,    48,    107,    149, 

181,  183,  194,  196,  201. 
Fulton  v.  Moore,  32. 
Furnam  v.  Dewell,  264. 
Furnish  v.  Austin,  226. 
Furtli   v.   Mortgage  Company,   156, 

226,  233. 

G. 
Gage  v.    Schroeder,   161. 
Gager  v.  Henry,  157,  233,  252,  318, 

397. 
Gaines  v.  Barr,  139. 

v.  De  La  Croix,  310. 

v.  Kennedy,  481. 

v.  New  Orleans,  380. 

Galbreath  v.  Dilday,  490. 

-  v.  Doe,  351. 
Galbraith  v.  Howard,  475. 

■ v.  Tracy,  362. 

Gall    v.   Tyberger,   27. 
Gallaugher  v.  Hebren,  200. 
Galpin  v.  Fishburn,  277. 

v.  Page,  49,  52,  69,  106,  107, 

180,  183,  202.  291.  293,  431. 

Galusha  v.  Butterfreld,  142. 
Gannett  v.  Leonard?  506. 
Gantley  v.  Ewing,   14,  332. 
Gardner  v.  Haney,  494. 

v.  Kelso.  '375.   410. 

v.  Railway    Company,     263, 

285,   286,   437. 

v.  Sisk,  332.  476. 


Gathwright  v.  Hazard,  337. 
Gay  v.  Grant,   77. 

v.  Smith,  292. 

Gaynor  v.    Ulewitt,   276. 
Gebb  v.  Howell,  489. 
Gelstrop  v.  Moore,  218,  245. 
Gentry  v.  Calahan,  422. 
George  v.  Middough,  2b7. 
■  v.  Watson,  372. 


Gerecke  v.  Campbell,  263,  285. 
Gibbs  v.  Mitchell,  406. 

v.  Neely,  290,  326,  332. 

v.  Shaw,    15S,   2oo,   443. 

Gibson  v.  Bank,  406. 

■  v.  Burgess,  50. 

v.  Herriott,   362,  364. 

v.  Lyon,    201,    340. 

— v.  Powers,  84. 

v.  Railway  Company,   28. 

v.  Roll,    157,    234,    240,    243, 

443. 

Giddings  v.  Day,  419. 
-  V.   Smith,    184. 

Steele,  154,  167,  247. 


Garlick  v.  Dunn.  142. 

Cnrner    v.    Tucker,    493. 

Garrett  v.  Wagner,  422. 

(.arret  tee  v.  Poplain,  201,  291,  357. 

Garth   v.  McCampbell,  307. 

Gary  v.  Aid  Association,  49. 

Garvin  v.  Hnll.  357, 

Gaskell  v.  Aldrich,  331. 


Gilbert  v.  Carter,  368. 

•  v.  Cooley,  479. 

—  v.  Hoffman,    361,    368,    450, 

486. 
Giles  v.  Pratt,  374. 
Gillett  v.  Truax,  146. 
Gillespie  v.  Switzer,  263,  285. 
Gilman   V.    Contra    Costa     County, 

266. 

v.  Tucker,  498,  499,  503. 


Gilmer  v.  Bird,  278. 
Givens  v.  Campbell,  287. 
Givin  v.  Latimer,  280. 
Gleason  v.  Hill,  358. 
Glenn  v.  Clapp,  465. 
Glover  v.  Moore,  174. 
—  v.  Ruffin,  414. 
Goble   v.   O'Connor,    361, 


368,    450, 


486. 
Godbold  v.  Lambert,  273. 
Goddard  v.  Harbour,  66,  79. 
Godell  v.  Blumer,  206. 
Godfrey,  Estate  of,   154. 
v.  Moore,*  419. 


Goforth  v.  Langworthy,  136.  245. 
Goldey  v.  Morning  News.  60. 
Goldtree  V.  McAllister,  163,  330. 
Good  v.  Norley,  236. 
Goode  v.  Crow,  458. 
Goodbar  v.  Daniel,  378,  459,  4S3. 
Goodkind  v.  Bartlett,  181,  438. 
Goodman  v.  Winter,  393,  473. 
Goodnow  v.  Hill,  174. 
Goodrich  v.  Pendleton,  179. 
Goodwin  v.  Sims,  72,  156,  181,  215, 
216,  231,  233. 


TABLE    OF    CASES. 


33 


Gordon  v.  Camp,  296. 

v.  O'Neil,  356. 

v.  Rixy,  206. 

v.  San  Diego,  496. 

Gorham  v.  Farson,  206. 

v.  Gale,  406. 

v.  Wing,  409. 

Gorman  v.  People,  55,  265. 
Goss  v.  Fowler,  409. 

v.  Meadors,  403,  404. 

Gossett  v.  Kent,  418. 
Gossom  v.  Donaldson,  202. 
Goudy  v.  Hall,  292. 

Gould  v.  Sternberg,  187,  202,  291, 
21)2. 

v.  McFall,  174. 

Goulding  v.  Clark,  432. 

Gowan  v.  Jones,   392. 

Gowdy  v.  Sanders,  296. 

Gowen  v.  Conlow,  201,  291. 

Grace  v.  Garnet  t,  449. 

Graham  v.  Florida  L.  &  M.  Com- 
pany,  458. 

■ v.  Lynn,  277. 

v.  Culver,   197. 

v.  O'Brien,  78,  135. 

v.  Ringo,  44. 

Granger  v.  Clark,  194. 
Grant  v.  Lloyd,  488. 
Grantie  v.  Bosecrance,  87. 
Gray  v.  Brignardello,  291. 

—  v.  Crockett,  476. 

,  Ex   parte,   44,   194. 

v.  Stewart.  31. 

V.  Wolf,  239. 

Grayson  v.  Wedel,  366. 
Green  v.  Abraham,  495,  496. 

v.  Clark,   408. 

— ■  v.  Green,   49,   87. 

v.  Holt,   364,   401. 

V.  Kempe,  29. 

Greene  v.  Holt,  344,  442. 
Greenough  v.  Small,  403. 
Greenwood  v.  Murray,  98. 
Greer  v.  Anderson,  392. 

v.  Wintersmith,   423,   457. 

Gregory  v.  Bartlett,  479,  480. 

v.  McPherson,   212. 

v.  People,   4. V.). 

v.  Stetson,  61. 

v.  Tabor,  221. 

v.  Tingley,    32.    3S4,    467. 

Gregson  v.  Tuson,  456. 
Grevemberg  v.  Bradford,  458. 
Gridley  v.  Phillips,  407,  489. 
Griel  v.  Randolph,  468. 

Grier,  Appeal  of,  213. 
Griffin  v.  Cunningham,  497. 

v.  Lacourse,  289,  439. 


Griffin   V.    Railway    Company.    L87, 

am. 

v.  Thompson,   14. 

Griffith   v.   Fowler,   9,    13.    94,    341, 
457. 

v.  Harvester    Company,    21, 

49,  95,  id-.  152,  272. 

v.  Judge,  368. 

V.    It  ley,   354. 


Grignon  v.  Astor,  18,  45,  229,  231, 

234,  386. 
Grimes  v.  Doe,  494. 

v.  Norris,   179. 


Griswold  v.   Stuart.   167. 

-  v.  Stoughton,   358,   436. 
v.  Sundback,  325. 


Groff  v.  Jones,  336,  340. 

Groner  v.  Smith,  416. 

Gross  v.  Washington,  341. 

Grosvenor  v.  Gold,  315. 

Grouch  v.  Martin,   445. 

Grunsenmenger  v.  Logansport,  185. 

Guckenheimer   v.   Angevine,    361. 

Guilford  v.  Love,  429. 

Guise  v.  Early,  134. 

Gunn  v.  Slaughter,  355. 

Gunter  v.  Cobb,  357. 

Guthrie  v.  Howard,   174. 

Gunzler,  In  re,  408. 

Guy  v.  Pierson,  226. 

Guynn  v.  MeCauley,  211,  458. 

Gw'inn  v.  Williams.  369,  372. 

H. 

Hackett  v.  Lathrop,  107. 
Hackley  v.  Swigert,  315. 
Haddington  v.   Philadelphia,   286. 
Hagerman  v.  Johnson.  34. 
Hagerty    v.    Wilber,    315. 
Hahn  v.  Kelly,  149,  181,  194. 
Haines  v.  Lindsay.  406. 
Hall  v.  Hamlin,  450. 

v.  Lachmond,  270. 

— •  v.  Thayer,   139,   451. 
-  v.  Woodman,  154.  247. 
v.  Yoell,    409. 


Halleek  v.  Guy,  3.  6,  18,  32,  400. 
v.  Moss,  24:. 


Halsey  v.  Jones,  45S.  471.  475,  481. 
Ham  v.   Peterson,  384,  3S8. 
Hamer  v.  Cook,  400. 
Hamblen  v.  Hamblen,   313. 
Hamblin  v.  Wernecke.  32,  362,  364. 
Hamiel  v.  Donnelly,  225.  399. 
Hamilton  v.  Dunn,  10.  23. 

v.  Harvey,  354. 

V.   Lock  hart.   153,  HI  7. 

v.  Mining  Company,  457. 

v.   Pleasants.    459. 

v.  Quimby,  400. 


34 


TABLE    OF   CASES. 


Hamilton  v.   Winona   Bridge  Com- 
pany,  399. 
Hamman  v.  Mink,  200,  417. 
Hammond  v.  Cailleaud,  465,  468. 

v.  Davenport,  105. 

v.  Hopkins,  362. 

Hammsmith  v.  Espey,  457,  400. 
Hancock  v.  Flynn,  187. 
Hand  v.  Grant,  459. 
Hanika,  Appeal  of,  276,  278. 
Hanna  v.  Morrow,  100. 

v.  Russell,    271. 

Hancock  v.  Titus,  342. 
Handy  v.  Xoonan,  475,  477. 
Hanks  v.  Xeal,  320,  323,  386. 
Hannah  v.   Chase,   8. 
Hannel  v.  Smith,  419. 
Hansford  v.  Hansford,  271. 
Hanson  v.  Hanson,  426. 
Hannnm  v.  Day,  212. 
Harbison  v.  Timmons.  467,  468. 
Hardester  v.   Sharretts,  127,   134. 
Hardin  v.   Cheek,  418. 

v.  Lee,  445. 

Harding  v.  People,  37. 

Hardware     Company     v.    Building 

Company,    357. 
Hardy  v.  Beatty,  60,  108,  112,  149, 
152. 

v.  Harbin,  486. 

Hare  v.   Hall,   393. 

Hargadine  v.  Van  Horn,  445. 

Hargis  v.  Morse,  262. 

Hargraves     v.    Meneken,    205,    422, 

423,   459. 
Harlan,  Estate  of,  179. 

v.  Harlan,  269,  272,  416. 

Harman  v.  Hahn,  313. 

v.  May,   203. 

v.  Moore,   425,  427. 

Harmon  v.  Auditor,  192,  197. 
Harness  v.  Cravens,  106,  107,  431. 
Harnock  v.  Harlow,  187. 
Harrington  v.   O'Reilly,   280. 
Harris  v.  Claflin,  115,  445. 

v.  Lester,   153,  259. 

v.  Shafer,   354. 

v.  Watson,  481,  487. 

Harrison  v.  Beard,  116. 

-  v.  Harrison,   1,   2,   158,   226, 
497,    502. 

v.  Ilger,   12,   481. 

v.   McHenry,  327,  362,  365. 

v.  Maxwell,  415. 

v.  Shanks,    457,   470,    484. 

v.  Simons,    278. 

v.  Stipp,   424. 

HaTshey  v.   Blackmar,   201.   294. 
Tbnt  v.  Burch.  1,  3. 

v.  Henderson,   497.   503. 


Harteneaux  v.  Eastman,  300,  397. 
Hartley  v.  Croze,  252,  255,  261,  324, 

402,  447,  455. 
Hartshorn  v.  Portroff,  393. 
Hasbrouck  v.  Milwaukee,  495. 
Haskins  v.  Helm,  273. 

Wallet,  268,  415. 


Hassan  v.  Wilcox,  38,  52,  95,  196. 
Hastings  v.  Johnson,  268,  337. 

Bryant,  203,  286,  296. 


Hatch  v.  Ferguson,  51. 
Hatcher  v.  Briggs,  458,  481. 
Haug  v.  Primeau,  211,  256. 
Havens  v.  Sherman,  243. 
Hausman  v.  Burnham,  59. 
Hawley  v.  Simmons,  490. 

,  In  re,  186,  433. 

Havens  v.     Drake,  70,  130. 
v.  Pierce,  89. 


Hawkins  v.  Hawkins,   70,   158,  235, 
380,  443. 

-  v.  Hughes,  21. 

Miller,   470,   483. 


Hawes  v.  Clark,  240. 

v.  Rucker,    303. 

Hayden  v.  Dunlap,  322. 
v.  Hayden,   486. 


Hayes,  Appeal  of,  8. 

,  Estate  of,  361,  368,  486. 

v.  Mining   Company,   404. 

Hays  v.  Miller,  277. 

v.  Res?er,  206. 

Thomas,  279. 


Hay  v.  McNealy,  221,  441. 
Havmond  v.  Camden.  478. 
Haynes  v.   Meeks,   179,   220,   481. 
-  v.  Shaw,  171. 
Sheriff,    307. 


Hay  ward  v.   Cain,  416. 
Hazel  v.  Lyden,  393,  473,  476. 
Hazleton  v.  Bogardus,  227. 
Hazzard   v.    Benton,    331. 
Martin,  184. 


Head  v.  Daniell,  ISO. 
v.  James,   419. 


Headen  v.  Oubre,  474. 
Heagle  v.  Wheeland,  139. 
Hearn  v.  Camp.  179. 
Heath  v.  Layne,  156,  233,  443. 
Wells.    154,    247. 


Hebel  v.  Insurance  Company,  100. 
Heberling  v.  Jaggar,  341,  435. 
Hebert   v.   Wines.    206. 
Heck  v.  Martin.  181,  185,  432. 
Heckman  V.   Adams.   45. 
TTedces  v.   Mace,   259.   428. 
Hefferlin  v.  Sinsenderfer,  332. 
Heidritter  v.  Oil  Company,  97.  196. 
Heinlen  v.  Helbron,  107. 
Helmer  v.  Rebm,  320. 


TABLE    OF    CASES. 


35 


Helmes  v.  Chadbourne,  61,  86,  238, 
242. 

. v.  Lovi,  24:;. 

Hemmer  v.  Wolfer,  75,  242. 
Henderson  v.  Henderson,  208. 

v.  Herrod,    383,    392,    412. 

v.  Overton,     457,    459,    469, 


484. 


v.  Thornton,  199. 
v.  Trimmier,  303. 


Hendrix  v.   Nesbitt,  163. 
Henry  v.  Keys,  382. 

v.  McClellan,   476. 

v.  McKerlie,   18,    389,    391, 

417. 

Herbert  v.  Herbert,  506. 

v.  Mayer,   343. 

Herdman  v.   Short,   240. 
Hernandes  v.  Hawkins,  144. 

v.  James,  142. 

Herrick  v.  Animerman,  248,  419. 

V.  Butler,   181. 

v.  Carpenter,    397. 

v.  Davis,  321. 

v.  Graves,  416,  424. 

v.  Morrill,    419. 

Herriman,  Heirs  of,  156. 

— ■  v.  Janney,   233. 

Herring  v.  Chambers,  130,  181. 
Hersey  v.  Walsh.  180,  427. 
Hershey  v.   Hershey,   23. 

v.  Latham,    14. 

Hervey  v.  Edmunds,  44. 

Hess  v.   Rader,  260. 

Hewitt  v.  Durant,  250. 

Hexter  v.  Schneider,  459. 

Hibbard   v.    Smith,    206,    271,     272, 

376,  423. 
Hicks  v.  Perry,  358. 
Hickson  v.  Rucker,  459. 
Higgins  v.  Bordagus,  413. 

v.  Paltzer,  174. 


High  v.  Nelms,  353. 
Hildrith  v.  Mclntire,  55. 

v.  Turner,  32. 

v.  Thompson,  281. 

Hiligsberg,  Succession  of,  326,  332. 
Hill  v.  Bain,   193. 

v.  Billingsly,   482. 

v.  Goodrich,   81. 

v.  Hill,  467,  468. 

v.  Newman,  285. 

v.  Sunderland,  499. 

■  v.  Whitfield.    368. 

v.  Woodward.    429. 

Hilton.  Appeal  of,  220. 

v.  Cachman,  180. 

Hindman  v.  O'Connor,  364. 

■  v.  Piper,    505,    506. 

Hind  v.  Scott,  2S5,  375,  415. 


Hitchcock  v.   Caruthers,   470,     472, 
483. 

v.  Wharf    Company,    342. 

Hobart  v.  Hobart,   143. 

v.  Heyle,  319. 

v.  Upton,  327. 

Hobbs  v.  Beavers,  327. 
Hobby  V.  Bunch,  59,  67,  197. 
Hobson  v.  Ewan,  218,  229. 

—  v.   McCambridge,   272,   277, 
357. 
Hockman  v.  Hockman,  207. 
Hodge  v.  Fabian,  216,  251. 

v.  Mitchell,  280. 

Hodges  v.  White,  280. 
Hoffman  v.  Band,  154. 

■  v.  Buschman,   358,    359. 

■  v.  Harrington,      362,        363, 


454. 


v.  Strohecker,  290,  373. 


Hogg  v.  Link,  200. 
Hogle  v.  Hogle,  235. 
Hoitt  v.  Holcomb,  450. 
Holcomb  V.  Boynton,  473. 
Holcombe  v.  Loudermilk,  472,   4S3.. 
Holden  v.  Vaughn,   356. 
Holdsworth  v.  Shannon,  357. 
Holliday  v.  Bruner,  203. 
Hollinger  v.  Reeme,  199,  450. 
Hollingsworth  v.  Bagley,  262. 
V.  Stone,   185. 


Hollister  v.  Vanderlin,  355. 
Holly  v.  Bass,  22. 
Holman  V.  Bank,  506. 

v.  Gill,  376,  414,  415. 


Holmes  v.  Beal,  452. 

■  v.  Jordan,  269. 

-  v.  Mclndoe,  283,  296. 
v.  Taylor,   330,   448. 


Holston  v.  Needles,  416. 
Holt  v.  Lynch,  281. 

V.  Thacker,    167. 


Holtzinger  v.  Edwards,  459,  460. 
Hoi  yoke  V.  Hoskins,  179. 
Hone  v.  Spivv.  266. 
Hood,  Estate  of,  251. 

Succession  of,  335. 


Hooper  v.  Caruthers,  280,  304,  449. 

■  v.  Castetter,  457,  464. 

Hoover  v.   Ivinsey  Plow  Company, 

172. 
Hope  v.  Blair.  43,  48,  187,  194. 
Hopkins  v.  Meir,  165. 
v.  Mason,  497. 


Horan  v.  Weinberger,  101. 
Hord  v.  Colbert,  459. 
Horgan  v.  Lyons,  314. 
Horn  v.  James,  423. 
Home  v.  Bank,  44. 
v.  Nugent,  469. 


36 


TABLE    OF    CASES. 


Horsey  v.  Knowles.  314,  315. 
Horsley  v.   Gath,   207. 
Hoi-ton  v.  Howard.   139,  149.  451. 
Hoskins  v.   Helm.   288. 
Hotehkiss  v.  Cutting,  380. 
Houch  v.  Lasher,   164. 
Hough  v.  Canby,  To. 
House  v.  Robertson,  355. 
Houston  v.  Ayeock,  382. 

v.  Childers.    280. 

v.  Woodbury  Pro.  Dist.,  38. 

Howard  v.  Lee.  417. 

v.   North.  174,  301,  321,  330, 

415,  416,  470,  471,  483,  484. 

v.  Turner,  28. 


Howbert  v.  Heyle,  227,  399. 

Howe  v.  McGivern,  343. 

Howell  v.  Eldridge,  281. 

v.  Manufacturing  Company, 


438. 


v.  Mills,  43. 
v.  Tyler,   362. 


Hunter  v.  Lester,  75. 

v.  Roach,    269. 

Huntington  v.  Charlotte,  180. 

v.  Meyer,    207. 

Hurt  v.  Stull,  2. 
Husbands  v.  Jones,  23. 
Huse  v.  Den.  245,  4S1. 
Hatchings  v.  Ebeler,  423. 
Hutchins  v.  Cassidy,  310. 

v.  Doe,  424. 


Howland  v.  Knox.  208. 
Hoyt  v.  Thompson,   353. 

v.  Sprague.  505. 

Huber  v.  Pickler,  289,  373,  439. 
Hubermann  v.  Evans,  252,  316,  324, 

402,  447. 
Huckins  v.  Kapf,  201,  291. 
Hudepohl  v.  Water  Company,  321, 

358,  369. 
Hudgens  v.  Jackson.  320,  323. 
Hudgin  v.  Hudgin,  478,  481,  482. 
Hudson  v.   Cable,    IS. 
Huff  v.  Morton,  204,  289. 
Huffman  v.   Gaines,   321,   326,   393, 

474. 
Hughes  v.   Cummings,  ISO,  427. 

v.  Dice,   416. 

v.  Lacock,   206. 

v.  Streeter,    419. 

v.  Swope,    383. 

■  v.  Wait,   314. 

v.  Wilkins.  283. 

Hugo  v.   Miller,   254. 

Hiding  v.  Railway  &  Improvement 

Company,  40. 
Hull  v.  Hull,  173.  47S.  481,  482. 

-  v.  Mallory.   148. 
Humphery  v.  Beeson,  414. 

v.'Hi+*.    314. 

v.  Wade.    457,   461. 

Hunt  v.  Gregg,  34. 

v.  Hunt.   43. 

v.  Louks,    269.    376. 

v.  Swayze,   296. 

v.  Townshend,    342,   422. 

Hunter  v.  Hatton.   226. 

,  In  re,  70,  93,  157,  226,  236. 


Hutchinson  v.  Shelly,  235. 
Kelly,  420. 


Hutton  v.  Laws,  251. 

Williams.   3,   6. 


Hyatt  v.   James,   210. 
Hyde  v.  Heller,  156,  233. 
v.  Supervisors,  458. 


Ilsley  v.  Harris,  271. 
Ingalls  v.  Rowell,  360,  368. 
Ingersoll  v.  Mangam,  86. 
Ingle  v.  McCurry,  92,  445. 
Inglis  v.  Trustees.  351. 
Ingraham  v.  Champion,  273,  285. 
Ingram  v.  Belk,  2S5. 
Insley  v.  United  States,  198. 
Insurance  Company  v.  Ragley.  334. 

v.  Bangs,  61. 

•  v.  Bank,   8. 

■  v.  Brown,  358. 

v.  Cottrell,  3,  386. 

v.  Decker,    84. 

■  v.  Goodwin,    10,    23. 

■  v.  Grim.    351. 

v.  Hanna,  88. 

■  v.  Loomis.  ?A. 

v.  Middleport,   478. 

v.  Page,  76. 

v.  Pappe,  143. 

-  v.  Ritchie,    308. 

v.  Sampson,   412. 
v.  Vanlue,   263,  289. 


Investment     Company     v.      Beadle 
County,  458. 

v.  Ray,    102. 


Irrigation    Company   v.    Middough, 

473. 
Iron  Company  v.  Fullenweider,  393, 

473.  475.  482. 

-  v.  Rarig.   192. 

v.  Railway   Company.    355. 


Irvin  v.  Ferguson,  267.  357. 
Succession  of,  55. 


Isaac  v.  Swift.  203. 

[saacs  v.  Gearhart,  339. 

[sabel   v.  Iron  Cliff  Company,   124. 

Isert  v.  Davis.  237. 

Israel  v.  Arthur,  123.  497. 


TABLE    OF   CASES. 


37 


J. 

Jackson  v.  Bowne,  479. 

v.  Catlin,   34. 

v.  Crawfords,  223,  231. 

v.  Davis,   406. 

v.  Dement,  351. 

v.  Diekerson,   423. 

v.  McGruder,  320,  396. 

v.  Hoi  brook,    208. 

v.  Hopkins,    352. 

v.  Houston,   27. 

v.  .Tones,    414. 

v.  Jouchert,  27. 

v.  Lahee,  315. 

v.  .uudeling,  402. 

v.  Rosevlet,  419. 

-  v.   State,    106. 

v.  Summerville,  361. 


Jacobs.  Appeal  of,  260,  388,  39S. 

v.   Smith.   422. 

v.  Watson,  341. 

Jacobey,  Appeal  of,  208. 
James  v.  Mayer,  211,  369,  458. 
James  v.  Smith,  252,  256. 
Jamison  v.  Hendricks,  435. 

v.  Weaver,    182. 

Janney  v.   Spedden,  109. 
Jarboe  v.   Colvin,   260. 

v.  Hall,   313. 

Jarvis  v.  Russick,  299. 
Jayne  v.  Boisgerard,  482. 
Jellison  v.  Halloran,  47'.). 
Jelks  v.   Barrett,   493. 
Jenkins  v.  Cropton,  68,  242. 

v.  Harris,   34. 

v.  Young,  72,  158,  226,  443. 

Jenners  v.  Doe,  330. 

Jennings  v.  Kee,  475. 

-  v.   Simpson,    167. 
Jerome  v.  Williams,  305. 
Jett  v.  Shinn,  272. 
Jewett  v.   Guyer,   314. 

—  v.  Jewett,  411. 

v.  Land  Company,  181,  428. 

-  v.  Tomlinson,  404. 
Johns  v.  Frick,  459. 

— •  Tn  re.  226. 
v.  Pattee,  200. 

v.   Tiers.  219,  245. 

Johnson  v.  Babcock,  345. 

v.  Baker,  262. 

v.  Beazley,   150,   155,   251. 

v.  Board,  494,  496.  497.  503. 

v.  Cobb,    72,    158,    235.    443. 

v.  Cooper,    391,    473. 

v.  Elkins.   296. 


—  v.  Gage,  92,  445. 

—  v.  Gregory,   66. 

—  v.  Hines,  410. 


Johnson  v.  Insurance  Company,  2s. 
31. 

v.  Jones.  55. 

v.  Johnson,  242. 

v.  Laybourn,  462. 

v.  Lindsay,    19. 

— ■  v.  MacCoy,  76. 

—  v.  Moore,  361,  486. 

v.  Mining   Company,   424. 

—  v.  Pryor,  365. 

—  v.  Richardson,    495,    500. 
Johnston  v.  Jones,  194. 

—  v.  Lemond,    206. 


Jolly    v.    Foltz,    185. 
Jones  v.   Association,   359. 

v.  Blumenstein,     457,      4C0, 


470. 


482. 


v.  Caswell,    360. 

v.  (lark,    369. 

v.  Davenport,  146. 

v.  Davis,   285. 

v.  Dewey,  361. 

v.  Edwards,  429. 

v.  Fletcher,    206. 

v.  Henry,  470. 

v.  Howard,    315. 

v.  Hunt.  432. 

v.  Iron   Company,   277.   477, 

-  v.  Jones,    81,    100. 

-  v.  Napier,    L53. 

-  v.  Perry,  499,  506. 

-  v.  Pratt,   357. 

-  v.  Railway  Company,  361. 

-  v.  Smith,   484. 

-  v.  Taylor,  417. 

-  V.  Vert,   187,  192. 
v.  Warnoek,  461. 


Jordan  v.  Bradshaw,  415,  418. 

v.   Petty.    277. 

v.  Poillion,   466. 

-  v.  Sayre,   1SS. 

v.  Terry,   406. 


Josslyn  v.  Cougrhlin,  158,  235. 
Journeay  v.  Gibson,  495. 
Jouet  v.  Mortimer,  405. 
Judge  of  Probate   v.   Toothhackei 

317. 
Julian  v.  Beal,  206,  470,  483. 


Kahn  v.   Kuhn,    271. 
Kane  v.  McCowan,  296,  445. 
Karn  v.  Iron  Company,  386. 
Kains  v.  Olney,  473. 
Karnes  v.  Alexander,  314. 
Lean    v.   Newell.    331. 
Kearney,   Ex    parte,   432. 
v.  Vaughn,  28. 


38 


TABLE    OF    CASES. 


Keefer  v.  Frace,  491. 
Keeler  v.  Stead.  139. 
Keene  v.  Sallenbeck,  201. 
Keith  v.  Keith,  415. 
Kell  v.  Worden.  472. 
Kellar  v.  Blanchard,  406. 
Kellogg  v.  Wilson,  300. 

v.  Gant,  279. 

Kelly  v.  Green,  418. 
—  v.  Duff.   479. 

v.  Hen-all.  303. 

v.  Insurance    Company,    49. 

v.  Kelly,  180,  478. 

v.  Morrell,  399,  433. 

Kendall  v.  Clark,   343. 

■  v.  Powers.  343. 

Kendrick  v.  Wheeler,  157,  374,  471, 

475,  481. 
Kennedy  v.  Baker,  259. 

v.  Clayton,  331. 

V.  Gaines,  157,  236. 

Kenney  v.  Green,  59. 

v.  Greer,    180,    429. 

Kent  v.  Mansel.  156,  221,  233. 
Kerns  v.  Graves.  287. 
Kerchival  v.  Lanier,  460. 
Kerr  v.  Commonwealth,  274. 
Kertehem  v.  George,  217,  455. 

— v.  McCarley,  343. 

Ketchum  v.  Craigh,  410. 
Keyes  v.  Cyrus,  343. 
Keyser,  Appeal  of,  310. 

v.  Guggenheimer,    179. 

Kibby  v.  Chitwood,  505,  506. 
Kile  v.  Yellowhead,  393. 
Kilgore  v.  Beck,  372. 
Kimball  v.  Castagnio,  64. 

V.  Fisk,   433. 

Kimmerle  v.  Railway  Company,  62. 
Kincaid  v.   Frog.   74. 

v.  Tutt,    357,   379. 

Kindell  v.   Frazer,   393. 
King  v.   Brown,   479. 

v.  Burdett,  168. 

v.  Cabanis,   375. 

v.  Cushman,   370. 

v.  Duke,   376. 

v.  Green,   142. 

— ■  v.  Gunnison,   32. 

v.  Nunn,    251. 

v.  Pratt,  301. 

Kingman  v.   Paulson,  174,  434. 
Kingsbury  v.  Love,  245. 

— v.   Powers.  427. 

V.  Wild.  417. 

Kingsland  v.  Murray,  221. 
Kingsley  v.  Jordan.  4  77. 
Kinaley  v.  Stead,  278. 
Kingsport  v.  Boynton,  206. 

v.  Rawson,  142. 


Kingman  v.  Glover,  423. 
v.  Paulson,  427. 


Kinney  v.  Knoebel,  340,  484,  485. 
Kirk  v.  Cassody,  343. 

v.  Kirk,   300,   377. 


Kirkman,  Ex  parte,  401. 
Kipp  v.  Bullard,  343. 

■  v.  Cook,    164. 

—  v.  Dawson.  446. 

v.  Frenhold,  446,  452. 


Kleimann  v.  Gieselman,  478. 
Klein  v.  New  Orleans,  342. 
Knight  v.  Morrison.  298. 
Knott  v.  Jarboe,   73. 
v.  Taylor,   167. 


Knotts  v.  Stearns,  373. 
Knowles  v.  Blodgett.  351. 
Koch  v.  Bridges,  448. 

v.  Railway  Company,   277. 

Koehler  v.  Ball,   19,   379,   384,   387, 

388. 

v.  Hughes,  47S. 

Kostenbader  v.   Spotts,   459,   466. 
Kraemer  v.  Rebman,  23. 

v.  Wellendorff,  29. 


King  v.  Davis.  66. 
Kuntz  v.  Sumpter,  38,  40. 
Kurtz  v.  Carr,  192. 
Kruse  v.  Wilson.   416. 
Kyle  v.  Evans,   264. 
— ■  v.  Kyle,   73. 


Lackey  v.  Pool.  476. 
Ladd  v.  Kimball,  100. 
v.  Weiskoff,  98. 


Lafferty  v.   Higgins,   419. 

Laggar  v.   Loan    Association.    363, 

485. 
Lamb  v.  Sherman,  404,  415,  493. 
Lambert  v.  Kinney,  343. 
Lamaster  v.  Keeler,  265,  380. 
Lancaster  v.  Wilson,  260,  3S8,  450. 
v.  Viera,  423. 


Lance  v.   Gorman.   457. 

Land  &   Cattle  Company  v.  .Print, 

22. 
Land  Company  v.  Kurtz,  252,  310, 

318. 
Land  &  Water  Company  v.  Boskin, 

108. 
Land  Company  v.  Walker.  357,  436. 
Landis  v.  Hamilton,  189. 
Landon  v.  Townshend.  49,  1S9. 
Landrue  v.  Lund,  110,  113. 
Lane  v.  Dorman,  506. 
—  v.  Innes,   63. 

v.   Nelson,    495.    497,    499. 


Laney  v.  Garbee,  <>s.  181. 

v.  Sweeney,   1S1. 


TABLE    OF   CASES. 


39 


Lang,  Ex  parte,  27, 
Langdon  v.  Lockett,  315. 
Langley  v.  Jones,  313,  314. 
Langyher  v.   Patterson,  260,  393. 
Lansing  v.  Railway  Company,  54. 
Lantz  v.    Moffett,   428. 
Larimer  v.    Knoyle.    45,    105. 

v.  Wallace,  252,  256. 

Latimer  v.  Railway  Company,  171 

V.  Rogers,   393. 

v.  Wharton,  463. 

Laughlin  v.  Peckham,   142. 
Law  v.  Grammes,  181,  430,  438. 
Lawrence  v.   Belger,   206. 
Laws  v.  Thompson,   469. 
Lawson  v.  Bolt,  5. 

v.  .Moorman,   105,   120. 

Eawry  v.   Ellis,   449. 

Leard,  Estate  of,  5,  459,  4G4,  405. 
Learned  v.  Geer,  328. 
Leary's  Case,  355. 
Lecoutonr  v.  Peters,  354. 
Lee  v.  Crossna,  269. 

v.  Enos,  422. 

v.  Fox,    75. 

v.  Gardine,   169. 

v.  Mason,   359. 

v.  Newland,  420. 

v.  Patten,    428. 

Leedom  v.  Lambaert,  427. 
Leib  v.  Lichtenstein,   174. 

v.  Ludlow,   485. 

Leger  v.  Doyle,  404. 
Leggett  v.   Hunter,   506. 
Le  Grange  v.  Ward.  144. 
Lehner  v.  Loomis,  357. 
Leihig  v.  Rawson,  272. 
Leitner  v.  Lewis,   7L 
Leland  v.  Wilson,  405. 
Lemon  v.   Craddock,   406. 
Lemonds  v.  Stratton,  475. 
Le  Moyne  v.  Hardin,  468. 
Lent  v.  Tillson,  36,  40. 
Leonard  v.  Brewer,  286. 

v.  Broughton,  205. 

v.  Sparks,  185,  432. 

Lepper  v.  Mover,  350. 

Leshey  v.  Gardner,  296,  375,  403. 
Lessley  v.  Phipps,  343. 
Leuders  v.  Thomas,  237,  457,  458. 
Levan  v.  Milholland,   259,   276. 
Levett  v.   Church,   292. 

v.  Smith,    296. 

Levy  v.  Lumber  Company,  432. 
■ —  v.  Martin,    481. 

v.  Sherman,    101. 

Lewark  v.   Carter,   435. 
Lewis  v.  Bartlett,  296. 

v.  Cook,   422. 


Lewis  v.  Morrow,  27::,      >   - 

v.  Owen,  492. 

v.  Taylor,  371. 

-  v.  Webb,    499. 

v.  Whittcn,  358. 


Ligare  v.  Railway    Company,    110, 

]  13. 
Lillibridge  v.  Tergent,  479. 
Lindley  v.  O'Reilly,  50,  58,  17:.. 
Lindsay   v.    Cooper,    378,    457,    469, 

470. 

v.  JafTrey,    145. 


Linenwebber  v.  Brown,  19,  387. 

Link   v.   Council,   2s:,. 
Linnian  v.  Riggins,  231,  369,  464. 
Lionberger   v.    Baker.   422. 
Lipscom  v.  Postell,  193. 
Lippeneott  v.   Peerenboom,  206. 
Liss  v.  Wilcoxen,  185. 
Litchfield  v.  Cudworth,  338. 
Little  v.  Sinnett,  432. 
Littleton  v.  Smith.  427. 
Livingston  v.  Cochran,  360. 
v.  Prosseus,  351. 


Lloyd  v.  Anglin,   325. 

v.  Malone,  217,  368. 


Loan  &  Trust   Company   v.    KaulT- 

man,  163. 
Loekwood  v.  Bigelow,  311. 
v.  Sturdevant,    338. 


Lofland  v.   Ewing,  406. 
Logan  v.  Hall,   205. 
v.  Pierce,  405. 


Logsdon  v.  Spivey,  315. 
Long  v.  Dixon,  27. 

v.  Burnett,    185,     210,     215, 


219. 


v.  Fife,   114,   116. 

v.  Hall,  314. 

v.  Long,  216,  218. 

v.  O'Fallon,  374. 

v.  Perrine,  11. 

v.  Waring,  457,  459. 


Longfellow  v.   Quinby,   375. 
Longworth  v.  Goforth,   477. 
Loomis  v.   Riley,    414. 
Lorillard   v.    Clyde,    197. 
Loudermilk    v.    Corpenning,    448. 
Lounsbury  v.  Purdy,  206,"  342. 
Love  v.  Cherry,  436. 
Lovegrove  v.  Brown,  276. 
Lovelace  v.  Webb,   378,   469. 
Lovell  v.   Sabine,   84. 
Lovejoy  v.  Albee,  44. 
Lovett  v.  Morey.  362. 
Lowe  v.  Rawlins,  457,  459. 
Lowenstein  v.  Canuth,  277. 
Lowry  v.  Fisher,   315. 
Loyd  v.  Loyd,  356. 


40 


TABLE    OF    CASES. 


Ludeman  v.  Hirth,  303,  305,  313. 
Ludlow  v.  Park,  344. 

v.  Wade,    308. 

Lum  v.  Reed,  323. 

Lumber  Company  v.  Allen,  45. 

v.  Bank,   358. 

v.  .Hotel  Company,  303,  312. 

v.  Park,  13G. 

v.  Phillips,    161. 

Lumpkins  v.  Johnson,  12,  381. 
Lurton  v.  Rodgers,  357,  436. 
Lutz  v.  Kelly,  49,   95. 
Lydiard  v.  Chute,  40,  108. 
Lyle  v.   Palmer,  479. 

Lynch  v.   Baxter,   G,   230,   233,   276, 

443. 
Lynch  v.  Earle,  313. 

—  v.  Kelly.  278,  397. 

v.  Tunnell,    169. 

Lynde  v.  Melrose,  458. 

Lyne  v.  Sandford,  72,  156,  186,  233. 
Lyon  v.  Lyon,  364. 

V.  Phillips,    27,    28. 

v.  Bobbins,    208. 

v.  Buss,  305. 

v.  Sanford,   189. 

v.  Vanatta,  226,  236,  240. 

Lyons    v.    Hamner,    156,    215,    226, 

259,  443. 

v.  McCurdy,  441. 

V.  Boss,  287. 

Lytle  v.  Lytle,  305. 
Lyton  v.  Baird,  333. 

M. 
Maeauley  v.  Smith,  206. 
Mace  v.  Dutton,  274. 
Macey  v.  Raymond,  411. 

v.  Stark,    251. 

Macgill  v.  Hyatt,  221. 
Mackie  v.  Cairns,  199. 
Maddox  v.  Sullivan,  321. 
Magruder  v.  Bank,  174. 
Maguire  v.  Henry,  497. 
Maina  v.  Elliott,  369,  375. 
Mahan  v.   Beeve,   491. 

Mallett  v.  Mining  Company,  429. 
Malloy  v.  Batcheller.  278.  * 
Maloney  v.  Dewey,   187. 

v.  11  < nan,  197. 

v.  Parham,  174. 

Malmgean  v.  Phinney,  133. 
Mann  v.  Reed,  270. 
Mannliart  v.  Soderstrom,  56. 
Manning  v.  Dove.  313. 

v.  Heady,   114,  122. 

Manufacturing  Company  v.   Beyer, 

48,  484. 
,  In  re,  139. 


Mansfield  v.  Gregory,  205,  422. 
Manson  v.   Duncason,   434. 
Maple  v.  Kusart,  393,  437,  473,  475, 
476. 

V.  Nelson,   332. 


Marbury  v.  Madison,  413. 
Marion   Co.    v.   Railway   Company, 
500.  F     J 

Markham  v.  O'Connor,  476. 
Markland  v.  Crump,  422. 
Maroney  v.  Boyle,  377. 
Marquis  v.  Davis,  231,  253,  319. 
Marshall  v.  Greenfield,  419. 

■  v.  Green,  336. 

v.  Bavisies,  142. 

Marston  v.  Williams,  206. 
Marrow  v.  Brinkley,  464. 
Martin  v.  Bank,  281. 
-  v.  Beeson,  415. 
Blight,  360. 


-  v.  Board,  413. 

-  v.  Bonsach,  416,  448. 

-  v.  Cobb,    59. 

-  v.  Davis,  315. 

-  v.  Hodge,    361,    486. 

-  v.  Kelly,    8. 

-  v.  Martin,  423. 

-  v.  Neal,  443. 

-  v.  Pace,   351. 

-  v.  Bice,  278. 

-  v.  Bobinson,    372. 

-  v.  Boulett,    361. 

-  v.  Williams,   153. 
Williamson,  218. 


Marvin  v.   Schilling,   228 
Mason  v.  Alexander,  83. 

v.  Barnard,  8. 

v.  Ham,  411. 

v.  Osgood,  3,  6. 

v.   Vance,  290. 

v.  Wait,  157. 

■  v.  White,  354,  459. 

Massie  v.  Brady,  369,  458, 

v.  Donaldson,   70. 

Masters  v.  Bienker,  433. 
Mastin  v.  Gray,  201,  294. 
Mather  v.  Knox,  393. 
Matson  v.  Swenson,  433. 
Matthews  v.  Clifton,  408. 

-  v.  Eddy,  3S2. 
v.  Matthews,  165. 


Maul  v.  Hellman,  3,  32,  384,  467. 
Maurr  v.   Parrish.   229,   319. 
Maverick  v.  Floris,  285. 
Mavity  v.  Eastridge,  283. 
Maxwell,  Ex  parte,  319. 
v.  Goetchins,  499. 


—  v.  Grace,  498. 

—  v.  Stewart.  :.'J. 


TABLE    OF    CASES. 


41 


May  v.  Logan  County,  399. 

v.  Marks,   233. 

Mayers  v.  Carter,  448. 
Maynard  v.  Cocke,  381. 
Mays  v.  Dooley,  101. 
—  v.  Rogers,  222. 

V.  Wherry,  359. 

Mayor  v.  Horn,  499. 

v.  Huff,  327. 

McAdow  v.  Black,  459. 

McAfee  v.  Reynolds,  203,  207,  30G. 
McAllister*  v.  Lynch,  406. 
McAlpine  v.  Tourtelotte,  341. 
McAnulty  v.  McClay,  214. 
McArthur  v.   Carrie,  310. 

v.  Dane,    141. 

v.  Oliver,  422,  457. 

McBain   v.    McBain,    78,    135,    3S1, 

412. 
McBernice  v.  Seaton,  189. 
McBride  v.  Langworthy,  293. 

-  v.  State,   161. 
MeCahan  v.  Elliott,  286. 
McCahill  v.  Hamilton,  459. 
McCall  v.  Rickarby,  286,  437. 
McCampbell  v.  Durst,  400. 
McCarter  V.  Finch,  467. 

v.  Weil,  385. 

McCartney  v.  King,  483. 
McCaskey  v.  Graff,  361,  450,  486. 
McCauley  v.  Harvey,  159,  231. 
McClanahan  v.  West,  180,  181,  429, 

450,   475. 
McClaskv,  Tn  re,  143. 

v.  Wingfield,  169. 

McClay  v.  Foxworthy,  156. 

v.  Engelhart,  408. 

McClellan  v.  Solomon,  207. 
McClure  v.  Logan,  289. 

v.  McClure,  420. 

McComb  v.  Gilkey,  505. 
McConnell  v.   Day,   181,   184. 

— v.  People,   437,   476. 

McCormick  v.  Edwards,  45S. 
— v.  McClure,  201,  291. 

v.  Meason,  420. 

v.  Paddock,  117,  167. 

v.  Railway  Company,  82. 

McCowan  v.  Foster,  369. 
McCracken  v.  Adler,  343. 

v.  Flanagan,    110,    113,    201, 

262,   294,   431. 

v.  Kuhn,  5. 


McDade  v.  Burch,  251. 
McDaniel  v.  Correll,  497. 
McDonald  v.  Cooper,  113,  114. 

v.  Dickson,   287. 

v.  Falvey,  276. 

v.  Granfeld,   303. 

v.  Leewright,  194.  . 

v.  Simcox,   92,  445. 

McDermot  v.  Thomson,  153. 
McDowell  v.  Gregory,  90. 
McElmore    v.     Railway    Company, 

161. 
McElmurry  v.  Ardis,  408. 
McEneny  v.  Reed,   10. 

v.  Town  of  Sullivan,  38. 

McEwin  v.  Zimmer,  50. 
McFadden  v.  Whitney,   100,   146. 
McGavock  v.  Bell,   260,   398. 

v.  Clark,   60. 

McGee  v.  Wallis,  458,  484. 
McGhee  v.  Ellis,  457,  470,  483,  484. 
McGehee  v.  Wilkins,  99. 


McCreary  v.  Everling,  169. 
McCullough  v.  Dashiell,  174. 

v.  "Estes,  218,  259,  329,  330, 

496. 
McCullum  v.  Uhl,  38. 
McCully  v.  Hardy,  452. 
M cC'urdy  v.  Baughm,  174. 


McGowan  v.  Wilkins,  461. 
McGraw  v.  Bayard,  12,  23. 

— ■  v.  Daly,  257,  263,  454. 

McGregor  v.  Morrow,  251. 
McGrew  v.  Reasons,  287. 
McGrubb   v.    Bray,   252,    255, 

324,   362,   447. 
McGuinnes  v.  Whalen,  7. 
McGuire  v.  Houns,  414,  416. 
McTlwain  v.  Karstens,  262. 
Mr  Kay  v.  Bank,  296. 
McKee  v.  Lineberger,  3,  17,  418 

v.  Simpson,  231. 

McKeever  v.  Ball,  253,  319,  426 
McKeighan  v.  Hopkins,  365. 
McKinney  v.  Brown,  174. 
-  v.  Collins,  95. 
Jones,   141. 


261, 


McKinneys  v.   Scott,  278. 
McKnight  v.  Applegate,  339. 

v.  Gordon,  14. 

McLane  v.  Piaggio,  68. 
McLaughlin  v.  Daniel,  483. 

v.  Janney,  308. 

v.  McCrary,   108. 

v.  Thompson,  446. 

v.  Wheeler,   133. 

McLendon  v.  State,  271. 
McLeod  v.  Applegate,  8. 

v.  Johnston,  474. 


McMannis  v.  Rice,  246. 
McMannus  v.  McDonough,  84. 
v.  Superior  Court,  287. 


McMichael  v.  McDermott,  326,  327, 

McMinn  v.  Whelan,  22,  109,  294. 
McMillan  v.  McCormick,  453. 
v.  Reeves,   186. 


42 


TABLE    OF   CASES. 


McMullen  v.  Goble,  358. 

v.  Reeves,  173. 

McNair  v.  Hunt.  20,  323. 
McXamara  v.  Carr,  90. 
McNeil  v.  Carter.  206. 

v.  Eddie,  66. 

v.  Society,  179,  214. 

McXally  v.  Harms.   159,  ~47. 
McNitt  v.  Turner, 

McPherson  v.  Cunliff,   IS,  226.  233, 

386. 
McEea  v.  Danner,  280. 

v.  Daviner,  387. 

McRoberts  v.  Lyon,  273. 
Meador  County  v.  Aringdale,  275. 
Means   y.   Rosevere,    3.">7. 
Mebane  v.  Lay  ton,  343. 
Meehan  v.  Edwards.  437. 

Meher  v.    Cole,    458,   461,    471,    47«, 

481. 
Meherhoff  v.   Diffenbacker,   12'.. 
Meigs  v.  Bunting.  290.   373. 
Melia    v.    Simmons,    48,     150,    155, 
•      215. 

Mellon  v.  Boarman,  459. 
Melius  v.  Pabst  Brewing  Companv, 

257,  363,  454. 

■  v.  Pfister,   212,   261,   318. 

Melton  v.  Fitch,  245,  344,  401,  421. 

44:.'.  493. 
Menafee  v.  Marge,  226. 
Menges    v.    Dentler,    494,    495,    499, 

502. 

■  V.  Oyster,  330. 

Mentzer  v.  Ellison,  445. 

Mercier  v.  Chace,  44. 

Merchant  v.  Railway  Company,  37. 

Merriam  v.  Knight,*  446. 

Merrill  v.   Beckwith,   104. 

v.  Harris,  158,  159,  230,  247, 

251,  338. 

v.  Washburn,  195. 

Merritt  v.  Home,  393.  475. 

v.  Richey,   289,   423. 

Merry  v.  Bostick,  206,   472. 
Mertz  v.  Berry,  343. 
Messenger  v.   Kentner,   162. 
Messerschmidt  v.  Baker,  408. 
Metealf  v.  Hart.   195. 
Methin  v.  Bexley,  457,  459. 
Meyer   v.    Brooks,    49. 

v.  Cochrane.  289. 

v.  Hearst,  169. 

v.  Kuhn,   127.  428. 

v.  Mintoyne.  262,  280.  283. 

Meyers    v.    McGavock,    93,    157,   225, 

226,  234.  443. 
Michoud  v.  Girod,  362. 
Mickel  v.  Hicks.  235.  430,  443. 
Millard  v.  Marmon,  161. 


Miller  v.  Babcock.  422. 
—  v.  Baker,  371. 

v.  Brinkerhoff,  44. 

v.  Butler,  315. 

■  v.  Corbin,   126. 

v.  Craig,  490. 

v.  Graham,   500. 

v.  Hall,  129. 

v.  Handy,  438. 

v.  Ivolb,  491. 

v.  Miller,  210,  418. 

v.  Morrison,  289,  373. 

v.  O'Bannon,  274. 

v.  Railway  Companv,  435. 

v.  Sherry,    197. 

v.  United  States,  196. 

v.  Wright,  466. 

Millett  v.  People,  37. 
Milliken  v.  Brown,  275. 
Mills  v.   Herndon.   433. 

v.  Lombard,    259,    272,    375, 


416. 

v.  Ralston,   8. 

v.  Rogers,    360. 

v.  Tukey,  406. 

Mining  Company  v.  Auditor,   503. 

v.  Bank,  459. 

v.  Marsano,  22. 

v.  Mason,  295.  356. 

v.  Mining  Company.  38,  49, 

59,    79,    195,    201,    262,  '294.    300, 


445. 


v.  Ross,  486. 


Minnesota    Company    v.     St.    Paul 

Company,  380. 
Minor  v.    Natchez,   321,   323. 
Mitchell   v.   Bliss,    414. 

v.  Bowen,  399. 

v.  Campbell,  496. 

v.  Corbin,  285. 

v.  Evans,   285. 

•  v.  Freedley,  473,  476. 

v.  Kintzer,  200,  450. 

v.  Lipe,    325. 

V.  Parker,    28. 

— v.  Schoonover,    167. 

v.  St.  Maxent,  280. 

v.  Wood,  206. 

Mock  v.  Stuckey,  476. 

Moffitt    v.    Moffitt,    21S,    229,    320, 

323. 
Mohan  v.  Smith,  343. 
Mohr  v.  Manierre,  18,  93.  157,  228. 

v.  Porter,  93,  157,  22S,  234, 

252. 

Monahan  v.  Vandyke.  243. 
Monarque  v.  Monaroue,  459. 
Montgomery  v.  Carlton,  161. 

v.  Johnson,     218,    24S,    335, 

396. 


TABLE   OF    CASES. 


43 


Montgomery  v.  Realhafer,  2S2,  304. 

-  v.  Saniory,   380. 

Montour   v.    Purdy,    252,    254,    255, 

261,  316,  324,  402,  447,  453. 
Moody  V.  Butler,  392. 

v.  Moeller,  29,  302,  330,  44S. 

Moore  v.  Cottingham,  231. 

v.  Davis,  391. 

v.  Easier,  171. 

v.  Edgefield,  102. 

v.  Fedewa,  271. 

v.  Greene,  392. 

v.  Haskins,  432. 

v.  Hill,   473. 

v.  Hood,  226. 

v.  Lock  Company,  406. 

v.  Martin,  409. 

v.  Neil,   259,   428. 

v.  O'Barr,  56. 

v.  Philbrick,  179. 

v.  Pye,  388. 

v.  Schultz,  6,   12. 

-  v.  Stark,  70,  238. 
v.  Thompson,  206. 


Morton  v.  Root,  262. 
Moser  v.,  Julian,  139. 
Mosley  v.  Manufacturing  Company, 

167. 
Mosseau's  Will,  215. 
.Mover  v.  Bucks,  149.  152,  194. 
v.  Hinman,  206. 


Mount  v.   Brown,  408. 
Moulton  v.  Moulton,  242. 
Mudge  v.  Steinhart,  96,  109. 
Muir  v.  Berkshire,  470,  479.  485. 

v.   Craig,  470,  472,  4S3,  485. 


Mulford  v.  Beveridge,  234,  374. 

v.  Stalzenbeck,   374. 

Mulholland  v.  Scott,  335. 
Munday  v.  Kaufman,  464. 
v.  Vail,  146 


Munford  v.  Pearce,  506. 
Munson  v.  Newson,  179. 

v.  Plummer,  202,  291. 


Mora  v.  Kuzac,   5 
Mordacia  v.  Speight,  302. 
Morey  v.  Hoyt,  302. 

v.  Morey,  106. 

Morgan  v.  Bouse,  457. 

v.  Burnett,  161,  429. 

v.  Dodge,  150. 

v.  Evans,  276,  285. 

v.  Ramsey,  303. 

v.  Taylor,  282. 

v.  Wattels,  362. 

Moriarity  v.  Gait,  343. 

Morrill   v.    Morrill,    187,     197,     259, 

427,  434,  435,  450. 
Morris  v.   Balkham,   449. 

v.  Bunce,  339. 

v.  Clymer,   506. 

v.  Graham,  108. 

v.  Hand,   179. 

v.  Hastings,  321,  322. 

v.  Hogle,    226,    240,    262. 

v.  Roby,  321,  370,  460. 

Morrison  v.  Deadrick,  169. 

v.  Harrington,  342,  422. 

■  v.  Hinkson,  346. 

Morrisse  v.  Inglis,  355. 
Morrow  v.  McGregor,  329,  331. 

v.  Moran,  387,  404. 

v.  Weed,  320,  323. 

Morse  v.  Bank,  422. 

v.  Bresey,  22. 

v.  Reed,  456. 

Mortgage  Company  v.   Smith,   384, 

388. 
Morton  v.  Carroll,  70. 


Murchison  v.  White,  27,  29,  429. 
Murdock  v.  Cincinnati,  38. 
Murphy  v.  De  Fiance,   159,   247. 

v.  Hill,  331. 

v.  Lyons,  111,  113,  181,  183. 

—  v.  Swadner,  314. 

v.  Teter,  363. 


Murrell  v.  Roberts,  263,  289. 
Murray  v.  Surety-Company,  51. 
Musgrove  v.   Connover,   453. 
Myer  v.  Cochrane,  289. 

v.  McDougal,  369. 


Myers  v.  Brooks,  87. 
—  v.  Davis,  251. 
v.  Lindsay,  381. 


Mygatt  v.  Coe,  422. 

N. 
Nabers  v.  Meredith,  277. 
Nabours  v.  Cocke,  262. 
Nace  v.  State,   101. 
Nanson  v.  Jacob,  477. 
National  Bank  v.  Bank.  135 
Nave  v.  Adams,  192. 
Neal  v.  Bartheson,  397. 

v.  Gillespy,  457. 

v.  Patterson,  310 


Needham   v.   Salt  Lake   City,    217, 
221. 

v.  Wilson,  92,  445. 


Neel  v.  Hughes,  421. 

Neill  v.  Cody,  392. 

Neligh  v.  Keene,  335,  387,  395.  436. 

Nelson  v.   Bronnenberg,  321,  359. 

v.  Campbell,  49,   87. 

v.  Connor,  315. 

-  v.  Potter.   175. 

v.  Rountree,  445,  497. 


Nesslcr  v.  Mehr,  206. 


u 


TABLE    OF    CASES. 


Neweomb  v.  Dewey,  181. 

v.  Light,  139. 

v.  Neweomb,  112. 

v.  Smith,  216. 

Newell   v.   Dart,  203. 
Newmaier  v.  Vincent,  343. 
Newman  v.  Beckwith,  296. 

v.  Bowers,  64,  127,  445. 

-  v.  Hook,  314,  331. 

In  re,  63,  107,  129,  130,  183. 

v.  Manning,  185,  432. 

V.  Samuels,  494,  495. 

New  England  Manufacturing  Com- 
pany v.  Starin,   84. 
New  Orleans  v.  Gaines,  167. 
Nichols  v.  Dibrell,  197. 

v.  Nichols,  66,  79,  319. 

v.  Ridley,   34. 

v.  Shearon,  458,  461. 

v.  Spremont,  343. 

Nicholson  v.  Cox,  174. 
Nims  v.  Sherman,  479. 

v.  Spurr,  272. 

Ninde  v.  Clarke,  277. 
Nippolt  v.  Kammon,  354. 
Nix  v.  Douglass,  355. 

-  v.  Williams,  340. 
Eailway   Company,     107, 

.  Thompson   Oil   Company, 
196. 
Noland  v.  Barrett,  4,  6,  13,  17,  IS, 
32,  388. 

y.  Noland,  295. 

Norman  v.  Olney,  230,  251,  407. 
Norris  v.  Hunt,  354. 

y.  He,   187. 

v.  Kidd,  343. 

Northcraft  v.  Oliver,  280,  449,  471, 

481,  484. 
Norss  v.  Neal,  332. 
Norton  v.  Loan  &  Trust  Company, 

459,  463,  464,  466. 

v.  Jamison,  169. 

v.  Norton,  248. 

v.  Pettibone,  495. 

y.  Taylor,  459. 

v.  Shelby,  55,  65. 

Norwood  v.  Kenfield,  142. 

Nott    v.     Sampson    Manufacturing 

Company,   255. 
Nowler  v. '(oil,  175.  484,  485. 
Nugent  v.  Nugent,  212. 
Nutt  v.  Summers,  459. 
Nye  v.  Swan,  181,  184. 

O. 

Oakes  v.  Williams,  275. 
Oakley  v.  Aspinwall,  139. 


O'Bannon  v.  Saunders,  303. 
Oberthier  v.  Stroud,  459. 
O'Brien  v.  Gaslin,  19. 

v.  Harrison,  201,  291. 

O'Bryan  v.  Davis,  350. 
O'Dell  v.  Campbell,  125. 

-  v.  Rogers,  158,  235,  443., 
Oden  v.  Dupuy,  475. 
O'Donnell  v.  Clinton,  31. 
Oelbermann  v.  Ide,  122. 
Ogden  v.  Walters,  415,  420. 
Ogle  v.  Baker,  200,  435,  450. 
O'Kelly  v.  Cholston,  313,  474. 
Oldheld  v.  Eulert,  262,  330. 
Ollis  v.  Kirkpatrick,  303. 
Olson  v.  Nunally,  147,  262. 
O'Neal  v.  Wilson,  422. 
Opinion  of  Judges,  506. 
Orcutt  v.  Hanson,  54. 

Oriol  v.  Herndon,  72,  156,  233,  443. 

Orman  v.  Bowles,  161. 

Ornisby  v.  Terry,  459. 

Orr  v.  Owens,  330,  452. 

Orthwin  v.  Thomas,  193. 

Osborne  v.  Tunis,  448. 

Osgood  v.  Blackmore,  336,  340,  438. 

v.  Thurston,  53. 

Osman  v.  Traphagen,  252,  397,  407. 
Osterman  v.  Baldwin,  457. 
Otis  v.  Kennedy,  367. 
Overton  v.  Perkins,  303. 

v.  Tozer,  334. 

Owen  v.  Baker,  207. 

-  v.  Barksdale,  354. 
v.  Slatter,  461. 


Owens  v.  Hart,  343. 

v.  McClasky,  59. 

v.  Eanstead,  SO. 


Paget  v.  Pease,  132. 

v.  Stevens,  122. 


Paine  v.  Moreland,  92.  445. 
Palariet,  Appeal  of,  498. 
Palmer  v.  Crosby,  272. 

v.  Martindale,    199. 

v.  Martinelli,  450. 

-  v.  McMaster,   113,   200,  431. 
v.  Oakley,   185,   245 


Pal  inert  on  v.  Hoop,  326,  393,  453. 
475. 

Paper  Company  v.  Publishing  Com- 
pany, 449. 

Parchman  v.  Charlton,  221,  441. 

Parker  v.  Kuhn,  43. 

v.  Nichols,   316. 

v.   Parker.   343. 

v.  Shannon,  400,  437. 

v.  Swan,  423. 


TABLE    OF    CASES. 


45 


Parkhurst  v.  Randall,  192. 

v.  Sumner,    192. 

Parks  v.  Highbee,  12o. 

Parmelee  v.  McGinty,  475,  477,  481. 

Parmenter  v.  Birkley,  421. 

Parson  v.   Homy,  476. 

Parsons  v.  Circuit  Court,  287,  305. 

Pasely  v.  McConnell,  405. 

Pate  v.   Hinson,   326,   437. 

Patterson  v.  Carneal,  337,  339. 

v.  Lemon,  3(59. 

v.  Nixon,  351. 

Pattison  v.  Josslyn,  360. 
Paul    v.    Smith.    45. 

v.   Willis,   149,  179,  201,  215, 

219,  294. 

Paulsen  v.  Hall,  331. 
Paxton  v.  Daniell,  60. 

v.  Freeman,  345. 

v.  Sterne,  422,  423,  484. 

Payne  v.  Hardesty,  129. 

v.  Lott,  105. 

v.  Massick,  86. 

v.  Payne,  281. 

Pearce  v.  Moore,  351. 
Pearsall  v.  Chapin,  27. 
Pearson  v.  Davis,  205. 

v.  Johnson,  382. 

Pease  v.  Egan,  478. 

v.  Scranton,  23. 

Pearse  v.  Hill,  428. 

Peck  v.  McLean,  187,  197,  292. 

v.  Shasted,    161. 

Peckharn  v.  Newark.  497. 
Pecotte  v.  Oliver,  272. 
Peel  v.  Jannay,  81. 
Pemberton  v.  McRea,  354. 
Penniman  v.  Cole,  273,  276. 

v.  Hollis,  23. 

Pennoyer  v.  Neff,  22,  49,  52,  95,  10S, 

152,*445. 
Penny  v.  Earle,  331,  449. 
Penrose  v.  McKenzie,  426. 
People  ex  rel.  Colcutt  v.  Board,  39. 
People  v.  Boring.  406. 

v.  Eggers,  179. 

v.  Fleming,  413. 

V.   Green,   426. 

v.  Haskins,  413. 

v.  Halladay,  197. 

v.  Henekler,  271. 

v.  Irwin,   413. 

v.  Mullen,  426,  427. 

v.  Pearson.   426. 

v.  Railroad  Company,  179. 

v.  Ransom,  413. 

v.  Seelye,  259. 

v.  Skinner.  101. 

v.  Supervisors,  500,  503. 

v.  Thomas,  194. 


People  v.  Wempler,  503. 
Pepper  v.  Commonwealth,  339. 
Perham  v.  Kuper,  409. 
1'crkins  v.  Dibble,  415. 

v.  Fairfield,  318. 

v.  Gridley,   389. 

v.  Hall,   361. 

v.  Iron  Company,  2S6. 

v.  McCarley,  163. 

Perry  v.  Adams,  72,  158,   226,   235, 
443,  481,  497. 

v.  Clarkson,  308. 

V.  Morse,  42. 

v.  Whipple,   264. 

Peters  v.   Yawter,  287. 
Petersburg  v.  Whitnack,  266. 
Peterson  v.  Emerson,  411. 
Petit  v.   Shepherd.   203,   205. 
Pettus  v.  McClanahan,  429. 
Pewabic       Mining       Company       v. 

Mason,  3. 
Pfeifer  v.  Lindsay,  354.  419. 
Phelps  v.  Benson,  361,  368,  450,  486. 

—  v.  Buck,  213. 
Phillips,  Appeal  of,  100. 

v.  Brown,  330. 

v.  Coffee,  323,  415. 

v.  Dawley,  384. 

v.  Johnson.  457. 

■  v.  Lewis,  187,  427. 

■  v.   Root,  343. 

v.  Wilson,   357. 

Picard  v.  Montross,  215,  243. 
Pickering  v.  Lomax,  179. 

State,   64. 


Piel  v.  Brayer,  359,  370. 
Pierce  v.  Association,  85. 

v.  Evans,  310. 

v.  Gates,   11. 

v.  Swigert,  313. 

-  v.  Truax,  343. 


Pierson  v.  Fisk,  468. 
Pike  v.  Chicago,  186,  432. 
—  v.  Kennedy,   113. 
v.  Wassal.  3S0. 


Pincus  v.  Reynolds.  200. 

Pioneer  Land  Company  v.  Maddux. 

194. 
Piatt  v.  Manning,  84. 

MeCullough,  413. 


Plume  v.  Howard.  45. 
Plummer  v.  Hatton,  60. 
Poindexter  v.    Burwell,   50,    176. 
Doolittle,   354. 


Pollard  v.  Wegner,  22. 
Pomes  v.  Brewer,  372. 
Ponder  v.  Chevers,  278,  437. 
Pool  v.  Ellis.  482,  4S4. 
Poor  v.  Larabee,  411. 
Pope  v.  Benster,  2S9,  457. 


46 


TABLE    OF    CASES. 


Pope  v.  Erdman,  464. 

v.  Harrison,  ISO,  425,  429. 

Porter  v.  Byrne,  315. 

v.  Jackson,   470. 

v.  Mariner,  406. 

v.  Ogden,  86. 

V.  Pico,  423. 

v.  Robinson,   161. 

v.  Stapp,  296. 

Portis  v.  Parker,  271. 

Post  v.  Leet,  461. 

Postlewait  v.  Ghiselin,  154,  247. 

Potter  v.  Couch,  422. 

Potts  v.  Wright,  386,  450. 

Power    v.    Larabee,    328,    358,    436, 

437. 
Powers  v.  Bergen,  499. 

v.  Cray,  23. 

v.  Mitchell,  44. 

Pratt  v.  Hotaling,  251,  252. 
Prentis  v.  Bowden,  280. 
Prescott  v.  Pettee,  313,  376. 

V.  Prescott,  268. 

Pressly  v.  Harrison,  181. 
Preston  v.  Fryer,  465. 
Price  v.  Boyd,  470. 

v.  Junkin,   372. 

Prine  v.  Mopp,  161. 
Proctor  v.  Furnam,  408. 

v.  Newhall,   162. 

Pry,  Appeal  of,  154. 

Pryor    v.    Downey,    210,    21S,    223. 

244,  402,  497. 
Publishing    Company    v.     Bennett, 

356. 
Puekett  v.   Richardson,   280. 
Pullen  v.   Hillman,  44. 

v.  Kinsinger,  43. 

Purcel  v.  Deal,  274. 
Purdy  v.  Hall,  195. 
Purser  v.  Cady,  290,  291. 
Purl  v.  Duval,  296. 

Pursley  v.  Hayes,  432,  452.  473. 

Q. 

Quackenbush  v.  Henry,  303. 
Quarle  v.  Abbett,  40,"  104,  106,  108, 

194. 
Quarles  v.  Hiern,  181,  321. 
Quinn  v.  McMahon,  50. 
Quivey  v.  Baker,  492. 

R. 

RadclifT  v.  Barton,  276. 
Rahn  v.   Commonwealth.   319. 
Railway  Company  v.  Ashby,  107. 

V.  Belle  Centre,   45,   105. 

v.  Bin  ken  v,    471. 

v.  Blythe,   70,   226,    505. 


Railway  Company  v.  Bradley,  332. 

v.  Brooks,  276. 

v.  Brow,  89. 

v.  Cadwell,  84. 

v.  Chamberlain,   432. 

v.  Cook,  72,  158,  235,  443. 

v.  Creed,    355. 

v.  Debusk,  85. 

v.  Gibbons,  54. 

v.  Gibson,  S5. 

v.  Gay,   179. 

v.  Heim,  206. 

v.  Hubbard,   194. 

v.  Judge,  186. 

v.  Koontz,   141. 

v.  McBride,    82. 

v.  Morris,   88. 

v.  Pinckney,   22. 

V.  Railway     Company,      38, 

138,   192,   501. 

v.  Sandoval  Co.,  54. 

v.  Souther,  361. 

v.  Summers,  139,  149. 

v.  St.  Paul  Company,  14. 

v.  Superior  Court,  87. 

v.  Telegraph  Company,  51. 

Ramsey  v.  Herkimer,  468. 

Rand  v.  Cutler,  303,  313,  449. 
v.  Garner,  206. 


Randalls  v.  Wilson,  172. 
Rankin  v.  Miller,  235,  452. 
Rammel  v.  Watson,  276. 
Ranier  v.  Hulbert,  152. 
Ransom  v.  Sargent,  206. 
Rappleye  v.  Bank,  208. 
Rasch  v.  Moore,  76. 
Rathbone  v.  Hooney,   189. 
Rawlings  v.  Bailey,  403.  412,  453. 
Raymond  v.  Hinkon,  102. 
-  v.  Holborn,  436. 
v.  Pauli,  436. 


Rea  v.  McEachron,  380. 

Rector  v.  Hartt,  358. 

Read  v.  Howe,  218. 

Real  Estate   Company  v.   Hendrix, 

19,  95,  108,  152,  262,  380,  431,  436, 

445. 
Redd  v.  Dyer,  459. 
Reed,  Appeal  of,  457. 

v.  Crosthwait,  470. 

-  v.  Diven,  359. 
v.  Douglass,  197. 


v.  Garfield,  2S1. 

v.  Kolfsbeck,  480. 

v.  Pryn,  307. 

v.  Reed,  43. 

-  v.  Radigan,  3S1,  3S4. 

v.  Wicht,  55. 


Reese  v,  Copeland,  381. 


TABLE    OF    CASES. 


■i? 


Eeese  v.  Xoland.  150.  233. 
Reeve  v.  Kennedy,  3G9. 
Reeves  v.  Sebern,  314. 
Reinach  v.  Railway  Company,  18. 
Reiner  v.  Eurlbut,  60. 
Reid  \.  Heasley,  414. 

v.  Jordan,  167. 

v.  Morton,   234. 

Reinhart  v.  Lugo,  425. 
Remick  v.  Butterfield,  364. 
Remmington  v.  Linthieum,  34,  405. 
Renner  v.  Ross.  223. 

Reno  v.  Hale,  365. 

Rent  mi  v.  Maryott,  459,  465. 

Requa  v.  Holmes,  477. 

—  v.  Rea,   467. 
Revues  v.  Dumont,  198. 
Reynolds  v.  Cobb,  422,  423. 

— v.  Fleming,   90,  91. 

—  v.  Harris,   201,   291. 

v.  Lincoln,  289,  373. 

— ■  v.  Schmidt,  228. 

v.  Stansbury,  226. 

v.  Stockton,  51,  146. 

Rheel  v.  Hices,  469. 
Rhiner  v.  Frank,  411. 
Rhoades  v.  Selin,  450. 

Rhode  Island  v.  Massachusetts,  45. 
Rice  v.  Calhoun,  102. 
■  v.  Parkman,  506. 

v.  Poynter,  390. 

Richards  v.  Allen,  424. 

v.  Rote,  497,  499. 

v.  Thompson,    190. 

Richardson  v.  Butler,  215,  216,  218, 

230,  388. 

,  Estate  of,  28. 

Richert  v.  Voss,  476. 
Richey  v.  Merritt,  274,  285,  436. 
Richman  v.  Board,  503. 
Richmond  v.  Gray,  411. 

v.  Marston,  470.  484.  4S5. 

Richer  v.  Vaughn,  77,  233. 
Rickettson  v.  Richardson,   125. 
Ricketts  v.  Unangst,  328. 
Riddle  v.  Turner,  273. 

Riggs  v.   Purcell,   462. 
Ripley  v.   Erledge,   285. 
Riley'  v.  Burton,  3.1,",. 
—  v.  Hart.    132. 

v.  Martinelli,  369. 

Rimes  v.  Williams,  201,  294. 
Ritter  v.  Henshaw,  460. 

v.  Scannel,   375. 

River  v.  Riley,  200. 

Riverside  County  v.  Howell,  446. 
Roach  v.  Martin,  251. 
Robb  v.  Hannah.  355. 

v.  Rogers,  88. 


Roberts  v.  Deeds,  354. 

v.   Hughes,   457,   459,   464. 

v.  Improvement     Company, 


109. 


v. 


Robinson,  206. 
Smith,  3a. 
Stowers,  262. 
Bates,  372. 


Robbins  v. 
Robertson  v.  Bradford,  215,  393,  111, 
475,  482,  497. 

v.  Johnson,  248. 

— v.   Smith,    260,    398,    467. 

v.  Van  Cleave,  404. 

v.  Wheeler,   56. 


Robinson  v.  Allison,  429. 

v.   Clark,   365. 

-  v.  Davis,   199. 

v.  Garth,  34,  404. 

v.   Hall,  107,  404,  406. 

v.   Leach,   343. 

v.  Murphy,  27. 

Roby  v.  Canal  Company,  192. 
Roche  v.  Waters,  162,  226,  4'.»7. 
Roeksell  v.  Allen,  459. 
Roderman  v.  Clark,  477. 
Rockwell  v.  Allen,  457. 
Roderigas  v.  Bank,  151. 
Rodgers  v.  Evans,  44. 

■ — ■  v.  Bowner,    205. 

Rogers  v.  Abbott,  491. 

v.  Brown,  479. 

v.  Cawood,  303,  404. 

v.  Smith,  459. 

v.  Wilson,    233. 

Rolfe  v.  Dudley,  124. 
Roller  v.  Reid,  49. 
Rollins  v.  Mclntire,  2S7. 
Ronan  v.  Meyer,  358. 

Root  v.  McFerrin,  72,  158,  1S6,  235. 

v.  Railway  Company,  .'ill. 

Rose,  Estate  of,  455. 

v.  Newman,  299.. 

Rosenfeld  v.  Palmer,  271. 
Roseman  v.  Miller,  270,  449. 
Ross  v.   Donaldson,  404. 

-  v.  Meade,   358. 


Rossiter  v.  Peck,  432. 
Rotch  v.  Humbolt  College,  73,  239, 
Round  v.  Pullen.  419. 
Rounsaville    v.    Hazen,    321,    396. 
Rouse  v.  Donovan,  37. 
Rowan  v.  Refeld,  331. 
Rowden  v.  Brown,  2:.".'. 
Rowe  v.  Major.  393,  437. 
-  v.   Palmer.    45.   218. 


Rowley  v.  Howard.  406. 

v.  Tousley.    486. 

Roy  v.  Horslev.  .".  1. 

— v.  Trust  Company.  S2,  87. 

v.  Rowe,  61,  70,  86. 


48 


TABLE    OF    CASES. 


Royer  v.  Foster,  126. 

Royston,  Appeal  of,  101. 

Rozier  v.  Fagan,  506. 

Rubber  Company  v.  Knapp,  445. 

Ruby  v.  Coal  &  Mining  Company,  8. 

Rucker  v.  Dyer,  317. 

v.  Moore,  238. 

Ruckle  v.  Barbour,  34,  410. 
Rudy  v.  Bank,  315. 

v.  Commonwealth,  314. 

v.  Ulrieh,  251. 

Rule  v.  Broach,  153,  236. 

Rumrill  v.  Bank,  228,  252,  255,  441. 

Runnels  v.  Kaylor,  491. 

Rupert  v.  Dantzler,  203. 
Russell  v.  Place,  197. 
Rutland  v.  Pippin,  307. 
Ryan  v.  Dox,  421,  442. 

v.  Ferguson,  156,  443. 

v.  Staples,  291. 

Ryder    v.    Flanders,    252,    254,    261, 

316,  402. 
Ryers,  In  re,  139,  450. 


Sackett  v.  Rombaugh,  21. 

— v.  Twining,  6,  12. 

Safford  v.   Weare,   199. 
Sager  v.  Mead,  27,  435,  450. 
Salladay  v.  Bainhill,   1S5. 
Salmond  v.   Price,   175,   469,   485. 
Saltonstall  v.  Rilev,  416. 
Samuels  v.  Shelton,  406,  418,  420. 
Sanborn   v.    Cooper,    452. 

v.  Fellows,  185. 

Sanders  v.  Pierce,  56. 
Sandford  v.  People,  179. 
Saifdlin  v.  Anderson,  286. 
Sanders  v.  Logue,  195. 
Sands  v.  Codwise,  361. 

v.  Lynham,  481. 

Sanger  v»  Trammel,  313. 
Santon  v.  Ballard,  54. 

Satchel  v.    Satcher,    156,    230,    233, 

259. 
Satterlee  v.  Matthewson,  500. 
Satterwhite  v.  Melzer,  296. 
Saunders  v.  Bank,  315. 

v.  Gould,  290,  373. 

Savings  Bank  v.  Hollenbeck,  205. 

v.  Love  joy,  84. 

Sawyer,  Ex  parte,  48,  149,  181. 
Saxton  v.  Seberling,  357. 
Saye  v.  McAllister,  184. 
Seaman  v.  Galligan,  44,  194. 
Schaale  v.   Wasey,  229. 
Schad  v.  Sharp,  429. 
Schafer  v.  Luke,  255. 

Schee  v.  Le  Grange,  181. 


Schlee.   In  re,   107. 
v.  Darrow,   217. 


Schenck  v.  Sauter,  476. 
Scherr  v.  Himmelmann,  472. 
Schnell  v.  Chicago,  229,  240,  473. 
Schisel  v.  Dickson,   445. 
Schneider  v.  McFarland,  235. 
School  District  v.  Griner,  84. 
v.  Werner,   205. 


Schrader  v.  Hoover,  54. 
Schrobacher  v.  Insurance  Company, 

63. 
Schroeder  v.  Wilcox,  72,  156. 
Younj 


Schweringer  v.  Hickok,  49,  469.  4S4. 
Scott  v.  Allen,  278. 

v.  Crews,  427. 

v.  Gorton,    362. 

v.  McNeal,  48,  150,  17S,  215, 


251. 


v.  Mewhirter,   206. 

v.  Noble,  48. 

v.  Scott,  78,  229. 

v.  Toledo,  38. 

Scribner  v.   Whitcher,   274.   276. 
Scudder  v.  Jones,  38. 

Sargent,  201. 


Scully  v.  Lowenstein,  55. 
Seaman  v.  Hicks,  462. 
Riggins,   327. 


Seamster  v.  Biackstock,  146. 
Sears  v.  Terry,  160,  185. 
Seaton  v.   Hamilton,  264. 
Sebastian  v.  Johnson,  300- 
Secretary    v.    Insurance    Company, 

413. 
Seeberger  v.  Wineberg,  411. 
Seger  v.  Muskegon  Company,  92. 
Seligson  v.  Collins,  343. 
Sell  v.   West,   46. 
Selsby  v.  Redlon,  495. 
Settlemeier  v.  Sullivan,  67.  68,  181. 
Sever  v.  Russell,  433. 
Severance  v.  Gerke,  179. 
Sewall  v.  Bank,  314. 
Seward  v.  Dideen,  184. 
Sewing  Machine   Company 

cliflfe,  60. 
Sexton  v.  Alberti,  2SS. 
v.  Nevers,  4S4. 


Rad- 


Seymour  v.  Ricketts,  231. 
Shad  v.  Sharp,  180. 
Shaffer  v.  McCracken,  289,  439. 
Shampney  v.   Smith,   341. 
Shank  v.  Brown,  495,  499. 
Shanklin  v.  Sims.  203. 
Shakman  v.  Schwartz,  271. 
Shannon  v.  Newton,  2S6,  369. 
Sharp  v.  Blair,  423. 


TABLE    OF    CASES. 


49 


Shattuck  v.  Cox.  478. 
Shawhan  v.  Loffer,  239. 
Shehan  v.  Barnett,  505,  506. 
Sheldon  v.  Newton,  43. 

v.  Rice,  362. 

Shelton  v.  Hadloek,  160. 
Shepherd  v.  Mclntire,  352. 

v.  More,   134. 

v.  Pepper,  187. 

Sherwood  v.  Baker,  1S6,  433. 

Shields  v.    Moore,   263. 

Shindel  v.  Keedv,  17. 

Shipman  v.   Butterfield,  210,  211. 

Shipp  v.  Klinger,   505,   506. 

Shippen  v.    Kimball.   45,    1 14. 

Shirk  v.  Thomas,  202,  203,  275.  291, 

404.  460. 
Shoemaker  v.   Harvey.   422. 

v.  McGonigal,  354. 

Short  v.  Galway,  50. 

v.  Hepburn,  297.  330,  448. 

v.  Porter,  382,  461. 

v.  Sears,   484. 

Shortzell  v.  Martin,  14,  258. 
Showers  v.   Robinson",    252. 
Shriver  v.  Lynn,  380,  385,  421.  442. 

v.  Shriver,   459. 

Shropshire  v.  Pullen,  339. 
Shumard  v.  Phillips,  388. 
Shumate   v.   Williams,   377. 
Shyrock  v.  Buckman,  278. 
Sichler  v.  Look,  107,  183. 
Sickles  v.  Hogeboom,  406. 

Sid  way    v.    Lawson,    494,    495,    499, 

500. 
Sibert  v.  Thorp,  369. 
Sid  well    v.    Schumacher,    270.    271, 

449. 

v.  Worthington,    106. 

Silvan  v.  Coffee,  264. 
Silvernail  v.  Campbell,  467. 
Simmons  v.   Blanchard,   392. 
— v.  Bayard,  161. 

v.  Hall  341. 

v.  McKay.  172. 

v.  Saul,  185,  186,  231,  464. 

v.  Vandegrift,  307. 

Sims  v.  Bank,  271. 

v.  Gay,  180,  181,  429. 

Sinclaire  v.  Learned,  503. 

v.  Stanley,  302,  330,  448. 

Singerly  v.  Swain,  468. 

Sipley  v.  Wass,  206. 
Sithin  v.  Board,  494. 
Sittig  v.  Morgan,  474. 
Sitzman  v.  Pacquette.  210. 
Skelton  v.  Sackett.  127. 
Skinner  v.  Maxwell,  315. 

v.  Tin-ell,  478. 

4 


Skipwith  v.  Cunningham,  207. 
Slater  v.  Lamb,  303. 
Slattery  v.  Jones,  206,  208. 
Slauter  v.  llollowell,  82. 
Sledge  v.  Elliott,  184. 
Sleeper  v.   Seminary,  376. 
Sloan  v.  Sloan,  186,  221,  441. 

v.   Thompson,   112. 

Small  v.  Hodgden,  408. 
Smiley  v.  Sampson,  42,  43. 
Smith   v.  Alexander,  282. 

v.  Arnold,  4,  7,  14,  32. 

v.  Behr,   its. 

v.   Blaekiston,  354. 

v.  Bradly,  161. 

v.   Brannon,   221. 

v.  Brittain,  461. 

v.  Clausmeier,  185,  432. 

v.  Cockrell,  332. 

v.  Colvin,  404. 

v.  Crosby,  354,  419. 

v.  Cuyler,   199,   450. 

v.  Douglass,   334. 

v.  Dubuque,  130. 

v.  Finley,  185. 

v.  Gates,  325. 

v.  Grady,  60. 

v.  Griffin,  108,  152. 

V.  Hess,  434. 

v.  Hileman,   417. 

-  v.  Hood,  277. 

v.  Huntoon,    321,    358,    370, 


460,  464. 

v.  Hurd,  40,  41,  105. 

,  In  re,  408,  420. 

v.  Jalow,  37. 

v.  Kelly,  408. 

v.  Kipp,  446. 

v.  Knoebel,  481,  485. 

v.  Knowlton,  102. 

v.  Long,  380,  385. 

v.  Marshall,  70. 

v.  McCann,  342. 

v.  McDonald,  161. 

v.  Munday,  303. 

v.  Painter.  459. 

v.  Perkins,   366. 

v.  Race,  157,  234. 

v.  Randall,  321,  325. 

v.  Reed,  280. 

v.  Rice,  162,  210. 

v.  Scholtz,  353,  400. 

v.  Schultz,  358. 

V.  Swenson,  453. 

v.  Westerfield,  51. 

V.  Wert.  392. 

v.  Wildman.  154,  224,  247. 

v.  Wilson.  211. 

v,  Woolfolk,  145. 


50 


TABLE    OF    CASES. 


Smith  v.  Worden,  473. 
■  v.  Wortham,  459. 

v.  Zent,  292. 

Sruithson  v.  Smithson,  450. 
Smoot  v.  Boyd,  86. 

Snapp  v.  Snapp,  197. 
Snow  v.  Hawpe,  372. 
Snowhill  v.  Snowhill,  506. 
Snydeeker  v.  Brosse,  75. 
Snvder,  Appeal  of,  433. 
— v.  Botkin,   205. 

v.  Coleman,  18,  481. 

Snydor  v.  Roberts,  259,  2S5,  333. 
Sohier  v.  Hospital,  506. 

v.  Trinity  Church,  506. 

Solomon  v.  Peters,  321. 
Somes  v.  Brewer,  27. 
Sommermeyer  v.  Schwartz,   108. 
Sonnenberger  v.  Steinback,  189. 
Sonnoner  v.  Jackson,  116. 
Soukup    v.    Investment     Company, 

289,  373,  439. 
Soule  v.  Hough,  123. 
Southard    v.    Perry,    326,    393,    474, 

475. 
Sowards  v.  Pritchett,  3S3. 
Sparling  v.  Dodd,  365. 
Spaulding  v.  Harvey,  479. 
Speakman  v.  Forepaugh,  466. 
Spear   v.    Sample,    280. 
Speck  v.  Pullman,  3S0. 

v.  Biggins,    414. 

v.  Wohlein,  389. 

Spence  v.  Pearce,  34. 
Spencer  v.  Haug,  203,  303. 

v.  Parsons,  174. 

v.  Sheehan,  453. 

Spitley  v.  Frost,  343. 
Splahn  v.  Gillespie,  408. 
Spoors  v.  Coehn,  45,  48. 
Spragg  v.  Shriver,  473,  476. 
Spring  v.  Kane,  234. 

Springer  v.  Shanvender,  48,  150,  155, 

178,  215. 
Sprogwins  v.  Taylor,  398. 
Sprott   v.  Beid,  272.  332. 
Spurgin  v.  Bowers,   72,  156. 
Stafford  v.  Harris.  29'.).  402. 
Stall  v.  Macallister,  333. 
Stampley  v.  King,  70,  242. 
Standi  v.  Gay,  502. 
Stanley  v.  Nelson,  227,  274. 

v.  Noble,  226.  227. 

v.  Stanley,  438. 

Staples  v.  Bradley,  208. 
. v.  Connor,  210. 

v.  Staples,  369.  372. 

Stapp  v.  The  Clyde,  40. 

v.  State.  364. 


Stark  v.  Brown,  479. 

v.  Carroll,    153. 

State  v.  Bank,  310. 

v.  Branch,  197. 

v.  Cassidy,  271. 

v.  Castee'l,  458. 

—  v.  Davis,  66. 

v.  Foster,  271. 

v.  Hadlock,   94. 

—  v.  Hamilton,  296. 

v.  Hocker,  138. 

v.  Jeter,  365. 

■  v.  Jones,  391. 

■  v.  Lawson,   410. 

—  v.  McGlynn,  251. 

—  v.  Michaels,  280. 

v.  Morgan,  285. 

v.  Nelson,  42. 

v.  Newark,  499. 

-  v.  Page.  274. 

v.  Railway     Company,     50, 


196. 


v.  Rives,  302. 

v.  Roberts,  296. 

v.  Salyers,  289. 

v.  Squires,  497. 

v.  Stanley,    474. 

v.  Superior  Court,  107. 

v.  Younts,  299. 


Steamship     Company     v.     Tugman, 

141. 
Sterans  v.  Edson,  457. 
Steel  v.   Bates.   81. 

v.  Metcalf,  296. 


Steel  Works  v.  Bresnahan.  200.  428. 
Steele  v.  Tutwiler,  290. 
Stegall  v.  Hun',  471. 
Steeple  v.  Downing,  351. 
Steere  v.  Vanderberg,  121. 
Steigert  v.  Bonn,  81. 
Stephens  v.  Dennison,  370. 
v.  Thompson,  420. 


Stern  v.  Lee.  343. 
Stevens  v.  Bank.  438. 
-  v.  Houser,  353. 
v.  Revnolds,  197. 


Stevenson  v.  McReavy,  184. 
St.  Claire  v.  Cox.  60,  61. 
St.  Louis  v.  Lanigan,  180,  183,  429. 
Stewart  v.  Anderson,  48,  49,  95,  109, 
112,  183,  445. 

v.  Armel,  472. 

—  v.  Bailey,  252,  455. 

■  v.  Cross,   460. 

■  v.  Devries,   459,   462,   464. 

v.  Garvin,    34. 

v.  Golden,   179.  211. 

v.  Griffin.  505.  506. 

v.  Nuchols,  283. 


TABLE    OF    CASES. 


51 


Stewart  v.  Pettegrew,  400. 

v.  Railway  Company,  479. 

v.  Severance,   272,   360,  416. 

v.  Stoker,   274.   276,   406. 

v.  Stokes,   489,   493. 

Stevenson  v.  Polk,  77. 
Stilwell  v.   Swarthout,  24:). 
Stiver,  Appeal  of.  218. 
Stockand  v.  Bartlett,  347. 
Stocking  v.  Hanson,  90,  167. 
Stockwell  v.  Byrne,  334. 
Stoltsenburg  v.  Stoltsenburg,  333. 
Stockmever  v.   Tobin,  334. 
Stone  v.' Day,  322. 
Stonebridge  v.  Perkins.  314. 
Stoner  v.  Ned',  11. 

Stoney  v.  Schultz,  382. 

Storm  v.  Adams,  116. 

Storrs  v.  Barker,  476. 

Stotts  v.   Brookfield,  259,   276,   369, 

381. 
Stoughton  v.  Mott.  56. 
Stout  v.  Cook  County,  354. 

v.  La   Follette.    315. 

— ■  v.    Phillips      Manufacturing 

Company,  468. 
Stover  v.  Boswell,  339.. 
Stow  v.  Kimball,  159. 

v.     Steel.  415.  416. 

Strain  v.  Murphy,  415,  416. 
Strange  v.  Austin,  403. 

v.  Beach,  492. 

Strasser  v.  Fort  Wayne,  497. 
Stressguth  v.  Reigleman,  116. 
Street  v.   Insurance  Company,   196. 
Stringham  v.  Board,  101. 

Stroble  v.  Smith.  393,  474. 
Strong  v.  Insurance  Company,  189. 
Strouse  v.  Drennan.  216,  335,  459. 
Struble  v.  Keighbert,  492. 
Stuart  v.  Allen,  218,  221,  231. 

v.  Palmer,  39. 

Stuckert  v.  Keller,  314. 
Stults  v.  Brown,  484. 
Sturgeon  v.  Gray,  101. 

v.  Hampton,  310. 

Sturgis,  Appeal  of,  303. 

v.  Fay,   50. 

Sturm  v.  Adams.   456. 
Sullivan  v.  Jennings,  463. 

v.  Leckie,  206. 

v.   Robb.  186,  433. 

v.  Sullivan,  43. 

Sumner  v.  Palmer,  408. 

v.  Parker.  210. 

Supervisors  v.  Edwards,  266. 
Swan  v.  Wheeler,  299. 
Swarts  v.  Stees,  206. 
Swereneen  v.  Gulick.  429. 


Swift  v.  Agnes,  272,  414,  423. 

v.  Lee,  416. 

-  v.   .Meyers.  68,  107,  183. 
v.  Yanaway,    153,    183,    184, 


259,  369.  428,  438. 
Swigert  v.  Harber,  54,  275. 
Swink  v.  Thompson,  408. 
Swope  v.  Ardery,  327. 


Taney  v.  Woodmansee,  272. 
Tanner  v.  Stein,  416,  448. 
Tapley  v.   Martin,    167. 
Tarbell   v.   Parker,   154,   247. 
Tarleton  v.  Uox,  169,  171. 
Tarr  v.  Robinson,  457,  459. 
Tatum  v.  Croom,  354,  419,  4S9. 
Taylor  v.  Calvert,  362. 

v.  Cooper,  381,  382,  383 

v.  Coots,  201. 

—  v.  Cornelius,  206. 

v.  Cozert,  315. 

v.  Eckford,  422. 

v.  Gilpin,   17. 

v.  MeCourtney,  270. 

v.  Ormsby,  110. 

v.  Place,  499. 

-  v.  Taylor,  270. 

v.  Wynne,  206. 


Teacher  v.  Devol,  330. 
Telegraph  Company  v.  Safe  Deposit 
Company,  421. 

-  v.  Taylor,  54,  187. 
v.  Trust  Company,  435. 


Temple  v.  Hammock,  242. 
Temples  v.   Cain,   386. 
Tennell  v.  Breedlove,  429. 
Terrell  v.  Anchauer,  27,  365,  454. 
-  v.  Prestell,  206. 

v.  Weymouth,  153,  476. 


Terry  v.  Cales,   1,  3,  4. 

-  v.  Cutler,  272,  296,  330. 
v.  O'Neal,  289,  297,  373,  439, 


448. 

Terwillager  v.  Brown,  362,  363,  454. 
Test  v.  Larch,   ::7:;. 
Teverbaugh  v.  Hawkins,  215,  441. 
Thain  v.  Rudisill,  248. 
Thaw  v.  Ritchie,  93,  157,  226,  234. 
The  Globe,   196. 
The  Mayor  v.  Colgate,  10. 
The  Mary,  9. 

The  Monte  Allege.  9,  32,  469. 
The  Queen  of  the  Pacific.  196. 
The  Rio  Grande.   196. 
Thez.  Succession  of,   159.  247,  458. 
Thomas  v.  Davi.lson.  379.  380,  459. 

v.  Glazener,  378,  459,  483. 

v.  Hebenstreit.  400. 


52 


TABLE    OF    CASES. 


Thomas  v.  Hunsacker,  173. 

v.  Ireland,  66,  79. 

v.  Kennedy,  342. 

v.  Le  Barron,   324,  414. 

v.  Moore,  74. 

v.  Owen.  66. 

v.  People,  48,  150. 

v.  Pullis,  505. 

v.  Robinson,  432. 

Thompson  v.  Bickford,  271. 

v.  Bishop.  84. 

v.  Bondurant,  281. 

v.  Boswell,   231. 

v.  Brown,    154,   247. 

v.  Insurance  Company,  485. 

v.  Jones,   70. 

v.  Lawrence,  302. 

v.  McCorkle,    66,    132,    425. 

426. 

v.  Morgan,  494. 

v.  Munger,  461. 

— v.  Ritchie,  355. 

v.  Ross,  315. 

v.  Simpson.  476. 

V.  Tolmie,  234. 

v.  Thompson,  292. 

Thorn  v.  Ingram,  3S0,  398. 
Thornton  v.  Boyd,  406. 
•  v.  Fairfax,  467. 

v.  Miskimmon,  413,  493. 

v.  Mulquinne,  316. 

Thorpe  v.  Bevans,  369. 
Threkelds  v.  Campbell,  459,  461. 
Threshing     Machine     Company     v 

Beck,  334. 
Thrift  v.  Fritz,  382,  467,  468. 
Throckmorton  v.  Pence,  32,  458. 
Thurston  v.   Thurston,   506. 
Thweatt  v.  Bank,  500. 
Tibbits  v.  Jageman,  331. 
Tice  v.  Russel,  437. 
Tiernan  v.  Poor,  336. 

v.  Wilson,   336.   340. 

Tillv  v.  Bridges,  459,  461. 
Tindal  v.  Drake,  506. 
Tipton  v.  Powell,  392. 
Titman  v.  Ricker,  12. 
Titus  v.  Warner,  343. 
Todd  v.  Cremer,  192. 

v.  Flournoy,  506. 

v.  Pilhowe'r,  258. 

Todlock  v.  Eccles,  197. 
Tolliver  v.  Brownell,  148. 
Tomlinson  v.  Fitze,   148. 
Tompkins  v.  Tompkins,  398. 
Toole  v.  Gridley,  437. 

v.  Toole,  461. 

Topf  v.  King,  84. 
Tousley  v.  Board,  476. 


Tower  v.  McDowell,  303. 
Town  of  Wayne  v.  Caldwell,  48,  54, 
194,  434. 

v.  Newland,  422. 


Towns  v.  Harris,  303. 
Townsend  v.  Gordon,  244,  440. 

v.  Smith,  81. 

V.  Tallent,  242,  243,  380,  443,' 


477. 

v.  Thompson,  188,  479. 

Townshend  v.  Simon,  468. 

Tracy  v.  Roberts,  186,  215,  216,  237, 

253,   255,   261,  316,   324,   402,   447, 

473,  475,  477. 
Trapnall  v.  Richardson,  203. 
Trautman  v.   Schwalm,  116. 
Trear  v.   Witham,  277. 
Treat  v.  Maxwell,   180. 
Trentman  v.  Willey,  292. 
Treptow  v.  Buse,  422. 
Tromble  v.  Williams,  225. 
Trovello  v.  Tilford,  314. 
Truett  v.  Legg,  262. 
Trusdell  v.  Lehman.  206. 
Trustees  v.  Rouch.  357. 
Trust  Company  v.  Buddington,  107, 
123. 

v.  Lumber     Company,     427, 


428. 

v.  Pullen,  103. 

v.  Railway    Company,     106, 

107,  183,  438. 

v.  Telegraph    Company,    50, 


176,  444. 
Tucker  v.  Harris,  185.  186,  432. 
Tudor   v.   Taylor,    460,   472. 
Tukey  v.  Smith,  296. 
Turner   v.    Adams,   368. 

v.  Bank,  408. 

—  v.  Conkey,   185,  432. 

v.  Watkins.  326. 


Tutt  v.   Boyer,   388. 
Tuttle  v.  Jackson,  406. 
Twinin  v.  Swart,  344. 
Twogood  v.  Franklin,   370. 
Tyler  v.  Guthrie,  468. 

v.  Wilkeson,  332. 


Tyree   v.   Wilson,    406. 
Tyson  v.  Brown,  441. 

U. 

Udell  v.  Kahn,  359. 
Ullman  v.  Mayor,  38. 
Ullrich,  Ex  parte,  36. 
Underwood  v.  McVeigh,  368. 
United  States  v.  Arrendondo,  44,  45. 

v.  Goyle,  66. 

v.  Ilslev,  2S2. 


•TABLE 'OF   CASES. 


53 


United  States  v.  Walker,  51. 
Unknown  Heirs  v.  Baker,  210. 
Upham  v.  Hemill,  459. 
Urton  v.  Woolsey,  164. 

V. 

Valentine  v.  Wysor,  364. 

Valle  v.  Fleming,   L8,  235,  407,  412, 

458,  471. 
Vance  v.  Foster,  467. 

v.  Frink,  84. 

v.  Royal   Clay  Manufactur- 
ing Company,  315. 

Vim  (.leave  v.  Buker,  272. 

v.  Miller,   453. 

v.  Milliken,  453. 

Van  Cott  v.  Prentice,  189. 
Van  Dusen  v.  Sweet,  185. 
Van  Gelder  v.  Van  Gelder,  311. 
Van  Horn  v.  Ford,  402. 

Van  Hoven,  Succession  of,  435. 
Van  Metre  v.  Assignee,  35(3. 

v.  Sankey,   183,  259. 

Van  Rensselaer  v.  Sheriff,  413. 
Van  Sant  v.  Butler,  43. 

Van  Shaak  v.  Bobbins,   28. 
Van   Wyck   v.   Hardy,   116. 
Vanderlinde  v.  Canfield,  446. 
Vandever  v.  Baker,  6. 
Vannoy  v.  Martin,  457. 
Varten  v.  Howard,  402. 
Vasques  v.  Richardson,  184. 
Vastine  v.  Flury,  285. 
Vattier  v.  Lyttle,  459,  483. 
Vaughn  v.  Congdon,  42. 

v.  Ely,    404. 

Velsian  v.  Lewis,  457.    . 
Verner  v.  Carson,  450. 
Verner  v.  Coville,  397. 

Verry  v.  McClellan,  227,  244,  440. 
Yick  v.  Mayor,  235. 

v.  Pope,    174. 

Vigoreux  v.  Murphy,  358,  436. 
Vilas  v.   Railway  Company,   90. 
Village  of  Kansas  v.  Juntgen,  266. 
Vining  v.  Officers  of  Court,  298. 
Violet  v.  Violet,  353. 

Visart  v.  Bush,  432. 
Vocal ian   Company   v.   Music   Com- 
pany, 277. 
Voelz  v.  Voelz,  122. 
Vogler  v.  Montgomery,  343. 
Vogelsang  v.  Null,  31. 
Vogt  v.  Tichnor,  269. 
Volland  v.  Wilcox,  426. 
Vorce  v.  Page,  109. 
Voorhis  v.  Bank,  43,  369,  408. 
Voss  v.  Johnson,  359. 
Vrooman  v.  Thompson,  303. 


W. 

Wade  v.  Sewell,  206. 

v.  Watt,  281. 

Wadham  v.  Gay,  369. 
Waggoner  v.  Mann,  29. 
Wagner  v.  Cohen,  382. 
Wait  v.  Dolby,  288. 
Wakefield  v.  Campbell,  33S. 
Walbridge  v.  Day,  245,  459. 
Walden  v.  Davison,  272. 
v.  Gridlev.  459. 


Waldron  v.  Railway  Company,  95. 
Waldrop  v.  Freidman,  276,  303,  449. 
Walker  v.  Day,  105. 

-  v.  Goldsmith,  218,  252,  261, 


318,   324,   402,   447. 

v.  Hill,  108. 

v.  McKnight,  259,  339. 

v.  Mulvean,  475. 

v.  Stroud,   164. 

v.  Walker,   372. 

v.  Wayne,  100. 

Wall  v.  Wall. '48,  149,  181,  251,  434. 
Wallace  v.  Berdell,  472,  483. 

v.  Brown,  385. 

v.  Hall,  412. 

•  v.  Loomis,   369. 

■  v.  Nichols,   375. 

v.  Swinton,  280. 

Walling  v.  Miller,  309. 
Walpole   v.    Elliott,    494. 
Walsh  v.  Anderson,  313,  376. 

v.  Macomber,    313. 

Walter  v.  Greenwood,  274. 
Walton  v.   Reager,  459. 

v.  Wray,  303. 


Wanzer  v.  Bright,  81. 
Ward  v.  Bank,  287. 

—  v.  Brewer,  491. 

v.  Lowndes,  112,  496. 


Ware  v.  Bradford,  314,  321. 
-  v.  Houghton,  310. 
V.  Johnson,  489. 


Warfield  v.  Dorsey,   IS,  32. 

v.  Woodward,  409,  467. 


Warmouth  v.  Dryden,  270. 
Warner  v.  Helm,  483. 
Warnock  v.  Harlow,  193. 
Warren  v.  Gutchens,  341 
-  v.  Hull,   205. 
v.  Helm,  470. 


Washburn  v.  Carmichael,  226,  236. 
Washington     v.     McCaughan,    210, 

317. 
Wasson  v.  Cone,  82. 

—  v.  Bennett,   206. 

Waters  v.  Duval,  313,  314,  354. 

v.  Peach,  278. 

v.  Stickney,  433. 


54 


TABLE    OF    CASES. 


Watertown  v.  Robinson,  242. 
Waterworks  v.  Drinkhouse,  201. 
Watkina  v.  Holman,  175,  505. 
Watson  v.  Hoy,  459. 

v.  Mercier,  495. 

v.  Oates,  506. 

V.  Reissig,  206,  472,  483. 

v.  Tromble,  3S4,  395,  436. 

v.  Violett,  18. 

v.  Watson,  417. 

Watt  v.  Rambo,  231. 
Wattels  v.  Hyde,  433. 
Watts  v.  Scott,  392. 

V.  White,  164. 

Weast  v.  Derrick,  468. 
Weaver  v.  Brown,  429. 

v.  Cryer,  288. 

v.  Guyer,  336,   340. 

v.  Norwood,  488. 

v.  Peasley,  270.  449. 

Webster  v.  Daniel.  107.  131. 

v.  Howard,  459. 

V.  Peck,  302. 

Webber  v.   Clark,   464. 

v.  Stanton,  171. 

Weeks  v.  Bridgman,  30,  31 

v.  Weeks,   291. 

Weist  v.  Grant,  393. 
Weinman  v.  Conklin,   179. 
Wehrle  v.   Wehrle,   343,   485. 
Welborn  v.  People.  427. 
Welch  v.   Battem,  280. 

V.  Lonis,  260. 

v.  McGrath,  366. 

Weld    v.    Johnson     Manufacturing 
|      Company,  93,  228,   252,   253,   261, 

318,  402,  447,  455. 
Well  man  v.  Lawrence,  411. 
Welp  v.  Gunther,  8. 
Wells  v.  Bower,  203,  306 

v.  Benton,  206. 

v.  Chailin,    245. 

V.  Chandler,  289. 

v.  Norton,    174. 

v.  Pelk.  227. 

v.  Rice.  8. 

Welsh  v.  Joy.  416. 
Weltzer  v.  Kelly,  498. 
Wenner  v.  Thornton,  327. 
Wescott  V.  Archer.  92,  445. 
West  v.  Cochran,  319,  419. 

v.  St.  John,   274. 

v.  Waddill,  366. 

v.   Walker,   163. 

v.  Wheeler,  139,  451. 

Westheimer  v.  Reed,  422.  457. 
Westerfield  V.  Williams.  470. 
Wheatley's  Lessees   v.    Harvey.   33, 

235. 


Wheeler  v.  Cox,  91. 

Whipperman  v.  Dunn,  460,  472,  483. 

White  v.  Clark,  2S7. 

,  Estate  of,  451. 

-  v.  Farley,  34,  321. 

v.  Foot    Lumber    Company, 


48,   149,  174,    195. 

v.  Graves,  27,  31. 

v.  Iselin,    363,    454. 

v.  Johnson,    59. 

V.  Luning,  419. 

-  v.  Pressly,  422. 

v.  Whiting,  422. 


Whitefield  v.  Adams,   343. 
Whitesides  v.   Barber,   77,   238. 
Whitlock  v.  Whitlock,   280. 
Whitman  v.   Fisher,   184. 
v.  Taylor,    259. 


Whitney  v.  Burnett,  445. 

v.  Butler,  413. 

—  v.  Porter,   242. 


Wibright  v.  Wise,  278. 
Wickliff  v.   Robinson,  365. 
Wicks  v.  Ludwick,  142. 
Wight  v.  Warner,  432. 
Wilbur  v.  Abbott,  473. 
Wilchinsky  v.  Cavender,  470,  489. 
Wilcox  v.  Emerson,  376. 

v.  Kassick,   194. 

v.  Raben,  19,  380,  385,  395, 


436. 
Wildasin  v.  Bare,  419. 
Wildes  v.   Van   Voorhis,    495. 
Wilhart  v.  Lyons.  290. 
Wilhelm  v.  Humphries.  423. 
Wilkins  v.   Conaty,    107. 
V.  Filby,  316,  4T7. 


AVilkinson,  Appeal  of.   274,   276. 

-  v.  Leland,  176.  444.  496.  505. 
v.  Schoonmaker,  149,  194. 


Will  v.  Simmons,  174. 
Willard  v.  Masterson,  422. 

v.  Whipple.    285. 

v.  Willard,   476. 


Willbanks  v.  Untrine,  348. 

Williams  v.  Allison,  358. 

v.  Dora n.    372. 

■  v.  Glenn,  459,  461. 

v.  Harrington,  4ns. 

v.  Haynes,  170,  445. 

,  In  re.  185. 

v.  Jackson,  351. 

v.  Johnson,   369. 

v.  McCammack,  185. 

v.  Miller.  345. 

v.  Morton,     186,     253.     261, 

318,  402.  447. 

v.    Xcth.    90. 

v.  Railway  Company,  S4. 


TABLE    OF    CASES. 


55 


Williams  v.  Reed,  81,  253,  261,  31G, 
318,  402,   447,   455. 

v.  Weaver,  280. 

v.  Welton,  78,   103,  135. 

v.  Woodman,  414. 

Williamson  v.  Berry,  3,  4,  249,  260, 

295,   379,   403. 

v.  Warren,  225,  236. 

v.  Williamson,  317,  4S1,  505, 

506. 

Willis  v.  Chandler,  380,  385. 

v.  Loeb,  422. 

v.  Matthews,  343. 

v.  Nicholson.  380. 

v.  Vandyke,  459. 

Wilmerton  v.  Philips,  458. 
Wilmore  v.  Stettler,  47:!.  475. 
Wilson  v.  Armstrong,  223. 

v.  Brown,   470. 

v.  Campbell,  269,  415,  416. 

v.  Commonwealth,   266. 

v.  Coolidge,  174. 

v.  Hastings,  227,  440. 

v.  Herbert,  174. 

v.  Holt,   217,   223,   244,   245, 

441,  481,  482. 

V.  Kellogg,   368. 

v.  Madison,   416. 

v.  Mason,  299. 

v.  Nance,   288. 

v.  Railway  Company,  40.  7s. 

95,  103,  135. 

v.  Seligman,  60,  135. 

V.  Shipman,   80. 

v.  Smith,   419. 

v.  Sparkman,  100. 

v.  Trustees,  273. 

v.  Twitty,  327. 

v.  White',  459,  479. 

Windmiller  v.  Chapman,  314,  315. 
Windsor  v.  McVeigh,  39,  51,  95,  196. 
Windfield  v.  Adams,  331. 

Wing  v.  Dodge,  229. 

Wingate  v.  Haywood,  429 

Wingo  v.  Brown,  459. 

Winifee  v.  Bagley,  40,  104,  10S. 

Winn  v.  Strickland,  149. 

Winston  v.  McLendon,  77,  235,  238. 

v.  Westfield,  193. 

Winter  v.  Coulthard,  277. 

v.  London,  433. 

v.  Trainor,  354. 

v.  Truax,  257. 

Wisdom  v.  Buckner,  369. 
Wishend  v.  Small,  299. 
Witham  v.  Smith,  413. 
Withers  v.  Caster,  207. 

v.  Jacks,  201,  291. 


Withers  v.  Patterson,  150,  210,  216, 

251. 
Witner,  Appeal  of,  205. 
Witson  v.  Otley,  369. 
WDll aid  v.    McKinna,  354. 
Wolf,  Appeal  of,  8. 

v.   Hank,  181. 

v.  Davis,  31. 

v.   Payne,  332. 

Wood  v.  Blythe,  45. 

—  v.  Brady,  196. 

V.  Colvin,   263,   294,   311. 

■  v.  Ellis,  377. 

v.  Mann,  468. 

—  v.  McChasney,  223. 
v.  Messerly,  204. 

V.  Moorehouae,    315. 

v.  Pond,  78,  103. 

v.  Sullivan,  410. 

v.  Watson,  173. 

v.  Wood,  81. 

v.  Young,  82. 

Woodard  v.  Mastin,  422. 
Woodbury  v.  Maguire,  239. 

v.  Parker,    365. 

Woodcock  v.   Bennett,   285. 
Woodhull  v.  Little,  300,  397. 
Woods  v.  Coal  Company,  187. 

Lane,  406. 


Woodworth  v.  Bennett,  360. 
Woodward  v.  Dean,  206. 
Woolridge  v.  Monteuse,  92,  445. 
Wooters  v.  Joseph,   276. 

v.  Arledge,  354,  419. 

j  Wooton  v.  Hinkle,  360. 
Worley  v.  Hineman,  1S9. 
Worner  v.   Agricultural    Company, 

478. 
Worthen  v.  Basket,  44s. 
v.  Cherry,    406. 


Worthingson  v.  Hylyer,  419. 
Worthington  v.  McRoberts,  459. 
Worthy  v.  Johnson,   184. 
Wortman  v.  Skinner,  490. 
Worton  v.  Howard,  310. 
Wright  v.  Dick.  321,  356. 

v.  Edwards,  2 is,  441. 

— ■  v.  Hawkins,   494. 

-  v.  Miller,    189. 

v.  Mack,   331. 

-  v.  Morley,  313. 
—  v.  Tichnor,  4:.'::. 

v.  Wittenmyre,   221. 

v.  Wright,  27,   l"i  1. 

Wyant  V.  Tuthill,  396. 
Wyatt  v.  Rombo,   215. 
Wyer  v.  Andrews.  303,  440. 
Wylie  v.  Coxe,  198. 


56 


TABLE    OF    CASES. 


Wyman  v.  Brown,  315. 

v.  Campbell.  IS,  251,  319. 

v.  Hooper,  372. 


Yaple  v. 
Yarboro 
Yates  v. 
Yeager  v 

v 

Yeazel  v. 
\eoman 

v, 

Yerby  v. 
Yetzer  v, 
Yoeum  v 
York  v. 


Y. 

Titus,  167. 

v.   Brewster,    343. 

Robertson,   207. 
.  Graves,  271. 
.  Wright,   263. 

White,  387,  423. 
v.   Bird,   314. 
.  Brown,  24S,  331. 

Hill,  4. 
.  Young,  274. 
.  Foreman,  457,  461. 

Texas,   60,  49S. 


Young  v.  Clapp,  208. 
—  v.  Dowling,   490. 

v.  Keogh,  412. 

v.  Keeler,  94. 

v.  Lorain,   230. 

v.  Pickens,  171. 

v.  Rathbone,   151. 

v.  Schroeder,  437. 

v.  Smith,  303,  406. 

v.  Walker,  475,  477. 


Z. 

Zabriskie  v.   Meade,   418. 
Zeigler,  Appeal  of,  11. 
v.  Shomo,   369. 


Zingsem  v.  Kidd,  490,  492. 
Zuver  v.  Clark,  332,  476. 


VOID  JUDICIAL  AND  EXECUTION  SALES. 


Chapter  I. 


The  Nature  of  Judicial  and  Execution  Sales  —  General 
Principles  and  Definitions. 


ANALYSIS. 


Section     1.  Technical  Judicial  sale  Defined  —  Is  a  Sale  Made  Pendente 
lite.  • 

2.  Court  is  the  Vendor  in  a  Judicial   Sale. 

3.  The  Master  or  Commissioner  the  Agent  of  the  Court. 

4.  Sale  is  Incomplete  until  after  Confirmation. 

5.  What    Sales    are    Judicial  —  Sales    Made    by    Assignee    in 

Bankruptcy. 

6.  Administrator's  Sales  of  Decedent's  Lands. 

7.  When  Administrator's  Sale  not  Judicial. 

8.  •  Partition   and   Mortgage   Foreclosure   Sales. 

9.  In  Admiralty  Proceedings. 

10.  Enforcement  of  Municipal  Liens. 

11. Vendor's  Liens  for  Unpaid  Purchase  Money. 

12.  By  Guardian,  on  Mechanic's  Liens  and  by  Orphan's 

Court. 

13.  Execution  Sales  not  Judicial  —  Are   Generally  Ministerial. 

14.  Nature  of  Execution  Sales. 

15.  Distinction  between  Judicial  and  Execution  Sales  —  Puidi- 

cal  Difference. 

16-  Distinguishing   Characteristics   of   an   Execution    Sale. 

17. When  Execution   Sale   Complete. 

18.  Further  Elements  of  Difference. 

19.  Quasi-Judicial  Sales  —  Execution  Sales  Required  to  be  Con- 

firmed. 

20.  Effect  of  Confirming  Order. 

21.  Nature  of  Certain  other  Sales  —  Sales  in  Attachment  Pro- 

ceedings. 

22.  Only  the  Property  Attached  is  Affected  in  Such  Case 

23.  Classes  of  Judicial  Sales  —  Three  General  Classes. 


58  VOID  JUDICIAL   AND   EXECUTION   SALES. 

Section  24.  Classes   of   Judicial    Sales  —  Sale    in    Foreclosure   of   Me- 
chanic's Lien  in  Georgia  not  Judicial. 

25.  Void  and  Voidable  Sales  —  Distinction  between  Void  and 

Voidable  Sales. 

26.  Void  and  Voidable  Defined. 

27.  Who  Bound  by  a  Voidable  Act. 

28.  Void   and   Voidable   Sometimes   Indiscriminately   Em- 
ployed. 

29.  Meaning  Attributed  to  Void  and  Voidable. 

30.  Degrees  of   Voidness  —  Absolute  Nullities. 

31.  Qualified  Void  Acts. 

32.  Statute  of  Frauds  — Does  not  Apply  in  Judicial  Sales. 

33.  •Administrator's  Sales  in  Illinois  within  the  Statute. 

34.  Execution  Sales  within  the  Statute. 

35.  The  Author's  Views. 

36.  Due   Process    of    Law  —  Comprehensive    Definition    Impos- 

sible. 

37.  Interpretation  of  the  Term. 

38.  — —  Notice  an  Essential  Requirement. 

39.  — —  An  Opportunity  to  be'  Heard  Essential. 

40.  ■ •  Power  to  Prescribe  Notice. 

41.  Constructive  Service  upon  Residents  and  Non-residents. 


TECHNICAL  JUDICIAL  SALE  DEFINED. 
Is  a  Sale  Made  Pendente  lite. 

Section  1.  A  technical  judicial  sale  is  one  made,  in  con- 
templation of  law,  by  the  court,  pendente  lite.  It  is  a  sale  of 
property  made  under  the  decree  of  a  court  of  competent 
jurisdiction,  having  authority  to  order  it,  and  is  made 
through  the  instrumentality  of  some  officer  of  the  court, 
whether  elected  or  appointed  and  commissioned  to  make  the 
sale.  The  sale  is  made  by  the  court  notwithstanding  the 
fact  that  it  is  conducted  by  a  master,  commissioner,  sheriff 
or  other  functionary  of  the  court  authorized  to  make  the  sale 
in  its  behalf. 

(Alexander  v.  Howe,  85  Va.  19S  — 7  S.  E.  Rep.  248;  Terry  v.  Coles, 
80  Va.  695;  Bozza  v.  Rowc.  30  111.  198  —  83  Am.  Dec.  184;  Harrison  v. 
Harrison,  1  Md.  Ch.  332;  Blossom  v.  Railway  Co.,  3  Wall.  207.) 

Court  is  the  Vendor  in  a  Judicial  Sale. 

§  2.  Accordingly,  in  theory  of  law,  in  a  strict  judicial 
sale  the  court  itself  is  properly  the  vendor,  and  the  sale,  in  so 


TECHNICAL  JUDICIAL  SALE  DEFINED.  59 

far  as  the  owner  of  the  property  is  concerned,  is  an  involun- 
tary one. 

(Bank  v.  Ned,  53  Ark.  110  —  13  S.  W.  Rep.  700  —  22  Am.  St.  Rep. 
185;  Hart  v.  Burch,  130  111.  426  —  22  N.  E.  Rep.  831;  Bozza  v.  Rowe, 
30  111.  198  —  83  Am.  Dec.  Ib4 ;  Andrews  v.  Scotton,  2  Bland.  643 ;  Hurt 
v.  Stull,  4  Md.  C'h.  391;  Bank  v.  Humphreys,  47  111.  227;  Harrison  v. 
Harrison,  1  Md.  Ch.  332;  Amor  v.  Cochrane,  66  Pa.  St.  308.) 

The  Master  or  Commissioner  the  Agent  of  the  Court. 

§  3.  From  its  very  nature  a  judicial  sale  is  of  necessity 
the  result  of  judicial  proceedings,  and  the  order  or  judgment 
upon  which  the  sale  is  founded,  must  expressly  direct  that 
the  property  involved,  whether  real  or  personal,  be  sold,  for 
without  such  an  order  there  can  be  no  judicial  sale  within  the 
strict  meaning  of  that  term. 

The  master  or  other  functionary  elected  or  appointed  and 
commissioned  to  make  the  sale  is  in  this  regard  the  mere  in- 
strument or  agent  of  the  court  and  perforins  his  duties  in  sell- 
ing the  property  under  its  direction,  and  is  at  all  times  subject 
to  its  control.  The  acts  of  the  officer  in  making  the  sale  un- 
der the  decre  or  order  of  sale,  when  regular,  are  in  contem- 
plation of  law,  the  acts  of  the  court  itself,  and  become 
binding  only  when  sanctioned  by  the  court  by  its  order  of 
confirmation. 

(Alexander  v.  Howe,  85  Va.  198  —  7  S.  E.  Rep.  248;  Insurance  Co.  v. 
Cottrell,  85  Va.  857  —  9  S.  E.  Rep.  132 ;  Maul  v.  Hellman,  39  Neb.  322  — 
58  N.  W.  Rep.  112;  Alexander  v.  Hardin.  54  Ark.  480  —  16  S.  W.  Rep. 
264;  Hart  v.  Burch,  130  111.  426  —  22  N.  E.  Rep.  831;  Bank  v.  Neel,  53 
Ark.  110  —  13  S.  W.  Rep.  700  —  22  Am.  St.  Rep.  572;  Halleck  v.  Guy, 
9  Cal.  181  —  70  Am.  Dec.  643;  Hutton  v.  Williams,  35  Ala.  503  —  76 
Am.  Dec.  297;  Chew  v.  Hyman,  7  Fed.  Rep.  7;  McKee  v.  Lineberger,  69 
N.  C.  217;  Williamson  v.  Berry,  8  How.  490;  Pewabic  Mining  Co.  v. 
Mason,  145  U.  S.  349  —  12  Sup.  Ct.  Rep.  887;  Allen  v.  Gillette,  127  U.  S. 
5S9  — 8  Sup.  Ct.  Rep.  1331;  Bolgiano  v.  Cooke,  19  Md.  375;  Mason  v. 
Osgood,  64  N.  C.  467.) 

Sale  is  Incomplete  until  after  Confirmation. 

§  4.  "  In  sales  directed  by  the  court  of  chancery,  the 
whole  business  is  transacted  by  a  public  officer,  under  the 
guidance  and  superintendence  of  the  court  itself.  Even  after 
the  sale  is  made,  it  is  not  final  until  a  report  is  made  to  the 
court  and  it  is  approved  and  confirmed." 

(Smith  v.  Arnold,  5  Mason,   414;   Yerby  v.  Hill,   16  Tex.   377.) 


60  VOID   JUDICIAL   AXD   EXECUTION   SALES. 

"  A  judicial  sale  i?  a  sale  pendente  lite;  whereas,  an  exe- 
cution sale  is  made  after  litigation  in  the  case  is  ended,  for,  as 
we  have  before  seen,  a  judicial  act  is  something  done  during 
the  pendency  of  a  suit.  The  suit  does  not  end  with  a  decree 
of  sale ;  the  proceeding  still  continues  until  after  confirma- 
tion. 

(Alexander  v.  Howe,  85  Va.  398  —  7  S.  E.  Eep.  248;  Williamson  v. 
Berry,  S  How.  490;  Terry  v.  Coles,  SO  Va.  695;  Apel  v.  Kelsey,  47  Ark. 
413  —  2  S.  W.  Eep.  102.) 

The  functionary,  by  whatever  name  he  may  be  designated, 
in  a  judicial  sale  acts  merely  as  the  agent  or  instrument  of 
the  court  to  sell  a  particular  piece  of  property,  and  a  part  of 
his  duty  is  to  report  his  proceedings  back  to  the  court  for 
which  he"  acts,  and  if  the  court  sanctions  his  acts  by  confirm- 
ing the  sale  it  adopts  his  proceedings,  in  theory  of  law,  as  its 
own,  and  his  acts  and  proceedings  become  judicial  acts,  and 
the  fact  that  the  officer  is  required  to  report  the  sale  to  the 
court  for  its  approval  or  rejection  makes  it  a  judicial  sale. 

The  rule  in  this  regard  has  been  lucidly  stated  in  a  very 
recent  case  in  Missouri  where  the  supreme  court  of  that  state 
said:  "  The  law  requiring  such  sales  to  receive  the  approba- 
tion of  the  court  before  it  shall  be  binding,  or  valid  to  pass  the 
title,  in  effect  makes  the  sale  the  act  of  the  court,  hence  the 
propriety  of  denominating  such  sales,  "  judicial  sales  ". 

(Noland  v.  Barrett,  122  Mo.  181  —  26  S.  W.  Eep.  692  —  43  Am.  St. 
Eep.    572.) 

WHAT  SALES  AEE  JUDICIAL. 

Sales  Made  by  Assignee  in  Bankruptcy. 

§  5.  Sales  made  by  an  assignee  in  bankruptcy  have 
been  held  to  be  judicial  for  the  reason  that  under  statutory 
provision  regarding  such  sales  the  proceedings  are  conducted 
under  the  supervision  of,  and  subject  to  the  confirmation  of 
the  court. 

(Leard's  Appeal,  164  Pa.  St.  435  —  30  Atl.  Eep.  298;  Chase  v.  Van 
Meter,  140  Ind.  321  —  39  X.  E.  Eep.  455;  Dresbach  v.  Stein.  41  Ohio  St. 
70;  McCracken  v.  Knhn,  73  Ind.  149;  Lawsori  v.  De  Bolt,  78  Ind.  563.) 

Administrator's  Sale  cf  Decedent's  Lands. 

§  6.  A  sale  made  by  the  administrator  of  a  deceased 
person,  under  the  order  of  the  court  of  probate  jurisdiction  to 


WHAT   SALES   AEE  JUDICIAL.  til 

that  effect,  where  the  statute  requires  the  fiduciary  to  report 
the  sale  to  the  court  for  its  approval,  is  clearly  a  judicial  sale, 
as  it  is  virtually  a  sale  by  the  court   itself. 

(Noland  v.  Barrett,  122  Mo.  181  —  26  S.  W.  Rep.  692  —  43  Am.  St. 
Rep.  572;  Austin  V.  Willis,  90  Ala.  421  —  8  So.  Rep.  94;  Moore  v.  Shultz, 
13  Pa.  St.  98  —  53  Am.  Dec.  446;  Hutton  v.  Williams,  35  Ala.  503  —  76 
Am.  Dec.  297;  Halleck  v.  Guy,  9  Cal.  181  —  70  Am.  Dec.  643;  Lynch  v. 
Baxter,  4  Tex.  431  —  51  Am.  Dec.  735;  Sackett  v.  Twining,  18  Pa.  St. 
199  —  57  Am.  Dec.  599;  Forma  n  v.  Hunt,  3  Dana,  614;  Mason  V.  Osgood, 
04  N.  C.  647;  Armor  v.  Cochrane,  66  Pa.  St.  308;  Vandever  v.  Baker. 
13  Pa.  St,  121.) 

When  Administrator's  Sale  not  Judicial. 

§  7.  On  the  other  hand  a  sale  made  by  an  administrator 
notwithstanding  the  same  is  made  pursuant  to  an  order 
of  the  court,  when  it  is  not  by  law  required  to  be  reported  to 
nor  confirmed  by  the  court  issuing  the  order,  lacks  the  essen- 
tial elements  of  a  judicial  sale,  for  the  court,  upon  authoriz- 
ing the  administrator  to  sell,  becomes,  for  the  purposes  of 
that  sale,  functus  officio.  The  sale  is  simply  the  execution 
of  a  ministerial  authority  on  the  part  of  the  officer. 

(McGuinness  v.  Whalen,  16  R.  I.  558  —  18  Atl.  Rep.  158;  Smith  v. 
Arnold,  5  Mason,  414.) 

Partition  and  Mortgage  Foreclosure  Sales. 

§  8.  Sales  made  in  proceedings  for  the  partition  of 
real  estate  are,  beyond  question,  judicial  as  they  are  sales 
made  by  the  court  purely,  notwithstanding  they  are  governed 
by  statutory  regulations  in  almost  if  not  every  state. 

(Burden  v.  Taylor,  124  Mo.  12  —  27  S.  W.  Rep.  349;  McLeod  v.  Apple- 
gate,  127  Ind.  349  —  26  N.  E.  Rep.  830;  Insurance  Co.  v.  Bank,  57  Pa. 
St.  388.) 

And  sales  made  in  proceedings  in  equity  for  the  fore- 
closure of  mortgage  liens  are  judicial,  as  they  are  in  the 
nature  of  proceedings  in  rem,  and  are  not  complete  until  con- 
firmation by  the  cour^. 

(Allen  v.  Elderkin,  62  Wis.  627  —  22  N.  W.  Rep.  842;  Welp  v.  Gunther, 
48  Wis.  543  —  4  N.  W.  Rep.  647;  Woehler  v.  Endter,  46  Wis.  301- 
1  N.  W.  Rep.  329;  Blossom  v.  Railway  Co..  3  Wall.  196;  Martin  v. 
Kelly,  59  Miss.  652;  Wells  v.  Rice,  34  Ark.  346;  Mills  v.  Ralston.  10  Kan. 
206;  Dills  v.  Jasper,  33  111.  262;  Allen  v.  Poole,  54  Miss.  323;  Hay's 
Appeal,  51  Pa.  St.  58.) 


62  VOID  JUDICIAL  AND  EXECUTION   SALES. 

But  mortgage  foreclosure  sales  under  fieri  facias  in  those 
states  where  the  action  to  foreclose  under  the  statute  is  held 
to  be  an  action  at  law,  are  not  considered  judicial. 

(Ruby  v.  Mining  Co.,  21  Mo.  App.  159;  Mason  v.  Barnard,  36  Mo.  384.) 

ISTor  is  a  foreclosure  sale  of  land  under  a  mortgage  by  ad- 
vertisement under  special  statutes  permitting  such  sales  a 
judicial  sale. 

(Hannah  v.  Chase,  4  N.  Dak.  351  —  61  N.  W.  Rep.  18  —  50  Am.  St. 
Rep.  656.) 

In  Admiralty  Proceedings. 

§  9.  Sales  in  admiralty  are  strictly  judicial,  and  are 
but  carrying  out  by  specific  execution  the  decree  or  judgment 
of  the  court  of  admiralty  in  a  proceeding  in  rem,  and  all 
the  world  is  held  bound  by  the  sale. 

(The  Monte  Allegre.  9  Wheat.  616;  Griffith  v.  Fowler,  IS  Vt.  390; 
The  Mary,  9  Cranch,  126.) 

Enforcement  of  Municipal  Liens. 

§  10.  The  sale  made  in  the  enforcement  of  munici- 
pal liens  for  street  improvement  under  statutes  or  ordinances 
are  judicial.  Such  liens  are  peculiarly  creatures  of  statu- 
tory provisions  unknown  to  the  common  law.  Under  re- 
peated decisions  the  rule  is  firmly  established  that  the  power 
of  the  court  in  these  proceedings  extends  simply  to  a  confir- 
mation or  rejection  of  the  sale,  but  not  to  a  modification 
thereof. 

(Insurance  ce  Trust  Co.  v.  Goodin,  10  Ohio  St.  557;  The  Mayor  v. 
Colgate,  2  Kern.  140;  Hamilton  v.  Dunn.  22  111.  259;  Mclnerney  v. 
Reed,  23  Iowa,  410;  Dubuque  v.  Harrison,  34  Iowa,  163.) 

Vendor's  Liens  for  Unpaid  Purchase  Money. 

§  11.  The  sale  of  land  in  proceedings  in  equity  for 
the  enforcement  of  -the  lien  of  a  vendor  for  the  unpaid  por- 
tion of  the  purchase  money,  the  lien  arising  in  the  vendor's 
favor  by  implication  of  law  as  against  the  vendee  and  all 
others  holding  under  him  with  knowledge  of  the  fact  that 
the  purchase  money  is  in  whole  or  part  unpaid,  is  a  judicial 
sale. 

(Long  v.  Perrine.  41  W.  Va.  314  —  25  S.  E.  Rep.  611;  Zeigler's  Ap- 
peal. 69  Pa.  St.  471;  Pierre  v.  Gates.  7  Blackf.  162;  Stoner  V.  Neff,  50 
Pa.  St.  25S;  Bayley  v.  Greenleaf,  7  Wheat.  46.) 


EXECUTION    SALES   NOT   JUDICIAL. 


G3 


By  Guardian,  on  Mechanics'  Liens  and  by  Orphans'  Court. 

§  12.  A  guardian's  sale  of  lands  of  his  ward  under 
the  order  of  the  court  having  jurisdiction  directing  such  sale 
is  judicial,  and  no  title  passes  until  after  the  confirmation 

thereof. 

(Searf  v.  Aldrich,  97  Cal.  360  —  32  Pac.  Rep.  324  —  33  Am.  St.  Rep. 
190;  Titman  v.  Riker,  43  N.  J.  Eq.  122  —  10  Atl.  Rep.  397;  Lumpkins 
v.  Johnson,  61  Ark.  SO  —  32  S.  W.  Rep.  65;  Harrison  v.  Tiger,  74  Tex. 
86—11  S.  W.  Rep.  1054.) 

So  are  sales  in  suits  to  enforce  the  liens  of  mechanics  and 
materialmen  judicial  sales, 

(Bennitt  v.  Mining  Co..  119  111.  9  —  7  N.  E.  Rep.  498;  McGraw  v. 
Bayard,  96  111.  146;  Clarke  v.  Boyle,  51  111.  104.) 

as  well  as  sales  under  the  order  of  the  orphan's  court  in 
Pennsylvania. 

(Moore  v.  Shultz,  13  Pa.  St.  98  —  53  Am.  Dec.  446;  Saekett  v.  Twin- 
ing, 18  Pa.  St.  199  —  57  Am.  Dec.  599.) 

EXECUTION  SALES  JSTOT  JUDICIAL. 

Are  Generally  Ministerial. 

§  13.  Execution  sales  under  writs  of  execution  is- 
sued upon  a  judgment  for  money  in  a  suit  at  law  are  gener- 
ally not  judicial,  but  merely  ministerial.  If  such  sales  were 
considered  judicial  no  action  for  damages  could  ever  be 
maintained  against  the  officer  for  seizing  and  selling  the 
property  of  a  third  person  not  a  party  to  the  suit,  under  a 
writ  of  execution,  for  the  self-evident  and  consummate  rea- 
son that  the  court  and  not  the  officer  is  the  vendor  in  a  ju- 
dicial sale. 

(Noland  v.  Barrett,  122  Mo.  181  —  26  S.  W.  Rep.  692  —  43  Am.  St. 
Rep.  572;  Blatehford  v.  Connover,  .40  N".  J.  Eq.  205  —  1  Atl.  Rep.  16; 
Den  v.  Pilhower,  24  N.  J.  L.  796;  Griffith  v.  Fowler,  18  Vt.  390.) 

Nature  of  Execution  Sales. 

§  14.  In  theory  of  law  an  execution  sale  is  but  the 
transfer  of  the  title  to  the  property  involved  which  the  judg- 
ment debtor  himself  might  voluntarily  transfer.  This  prin- 
ciple is  an  old  one  dating  its  origin  back  to  the  Institutes  of 
Justinian.     In  making  the   execution   sale   the   purchaser 


64  VOID  JUDICIAL   AXD   EXECUTIOX   SALES. 

takes  title  to  the  property  not  mediately  but  immediately 
from  the  defendant  in  the  writ,  and  the  sheriff  is  the  agent 
of  the  debtor  in  making  the  sale,  constituted  and  appointed 
for  that  purpose  by  law. 

"While  it  is  true  that  in  order  to  be  valid,  an  execution  sale 
must  be  based  upon  a  judgment,  decree  or  order,  nevertheless 
the  judgment  is  not  for  the  sale  of  any  specific  property  as  is 
a  strict  judicial  sale,  but  only  to  recover  a  specified  sum  of 
money.  The  officer  having  the  writ  receives  no  instructions, 
orders  or  directions  from  the  court  concerning  the  property 
to  be  seized  or  sold,  nor  is  the  sale  to  be  reported  to  or  con- 
firmed by  the  court.  Ordinarily,  then,  the  court  is  not  con- 
cerned about  an  execution  sale,  and  has  no  power  over  it  save 
to  vacate  it  for  a  non-compliance  with  the  statute  regulations 
and  requirements  touching  the  sale.  The  functions  of  the 
court  having  terminated  with  the  rendition  of  the  judgment 
for  the  money  demand  for  the  collection  of  which  the  writ 
is  issued  and  is  sought  to  be  enforced,  it  is  not  concerned  in 
the  sale  as  is  the  ease  in  a  technical  judicial  sale. 

The  only  rule  and  guide  the  levying  officer  has  is  the  law ; 
his  obedience  is  an  obedience  to  the  law,  he  having  no  special 
discretion  or  judgment  in  this  regard.  Or  in  other  words, 
it  is  a  ministerial  as  contradistinguished  from  a  technical 
judicial  sale.  The  court  neither  orders  the  execution  to 
issue  nor  the  sale  to  be  made,  in  execution  sales  purely  min- 
isterial. The  officer  in  selling,  in  contemplation  of  the  law, 
is  the  agent  of  the  judgment  or  execution  debtor  for  the  pur- 
poses of  the  sale, 

(Shortzell  v.  Martin.  16  Iowa.  519;  Cooper's  Lessees  v.  Galbraith.  3 
Wash.  C.  C.  546.) 

and  is  not  the  instrument  or  agent  of  the  court  in  conducting 
the  sale  as  in  strict  judicial  sales. 

(McKnight  v.  Gordon.  13  Rich.  Eq.  222  —  94  Am.  Dec.  164:  Hershey 
v.  Latham.  42  Ark.  305:  Railway  Co.  v.  St.  Paul  Co..  2  Wall.  600:  Smith 
v.  Arnold,  5  Mason,  414:  Forman  v.  Hunt,  3  Dana,  614;  Griffin  v. 
Thompson.  2  How.  244:  Armis  v.  Smith.  16  Pet.  303:  South  v.  Maryland, 
13  How.  396;  Gantley's  Lessees  v.  Ewing,  3  How.  707.) 


DISTINCTION  BETWEEN   JUDICIAL  AND  EXECUTION    SALES.    65 


DISTINCTION  BETWEEN  JUDICIAL  AND  EXECU- 
TION SALES. 
Radical  Difference. 

§  15.  The  radical  difference  between  judicial  sales 
as  contradistinguished  from  execution  sales  is  this:  that  in 
the  former  the  court  controls  the  sale,  acting  through  the 
functionary  ostensibly  making  it,  the  transaction  not  being 
completed  nor  binding  until  the  officer  lias  reported  the  sale  to 
the  court  and  it  has  been  approved  by  it  by  the  entry  of  its 
order  of  confirmation,  while  an  execution  sale  by  a  sheriff  is 
purely  a  ministerial  cue,  and  the  sheriff  derives  his  authority 
to  sell  by  virtue  of  the  writ,  and  is  guided  by  its  terms  and 
the  law,  and  not  by  directions  from  the  court,  it  not  being 
required  that  his  acts  under  the  writ  be  confirmed. 

If  however  the  statute  requires  a  confirmation  of  the  sale 
by  a  sheriff  under  an  execution,  as  is  the  case  in  several 
states,  it  is  not  strictly  a  ministerial  sale  and  partakes  of  the 
nature  of  a  judicial  sale. 

Distinguishing  Characteristics  of  an  Execution  Sale. 

§  16.  The  distinguishing  characteristics  of  an  exe- 
cution sale  are,  that  the  writ  is  a  general  authority  of  and 
command  to  the  officer  to  make  the  amount  of  money  therein 
designated  by  sale  of  property  belonging  to  the  execution 
debtor.  By  the  writ  the  sheriff  is  commanded  to  seize  and 
sell  the  whole,  or  any  part,  or  so  much  of  the  debtor's  prop- 
erty as  may  be  necessary  to  make  the  required  amount,  and 
no  particular  piece  or  article  of  property  is  ever  mentioned 
or  designated,  while  in  a  strict  judicial  sale,  whether  of  real 
or  personal  property,  with  which  the  court  of  chancery  deals 
is  always,  in  one  form  or  another,  distinctly  specified  in  the 
proceedings,  and  the  sale  is  made  by  the  court  at  the  instance 
of  the  party  asking  it,  in  conformity  to  a  complete  consum- 
mation of  the  object  of  the  suit. 

On  the  contrary,  in  proceedings  at  common  law,  no  prop- 
erty is  designated  from  the  institution  of  the  action  to  the 
final  determination  thereof  and  the  issuance  of  execution  or 
fieri  facias,  and  the  terms,  manner  and  condition  of  the 
sale  are  regulated  by  law,  while  in  chancery  the  court  pre- 
5 


66  VOID  JUDICIAL  AXD   EXECUTION   SALES. 

scribes  the  terms  and  manner  of  sale,  and  all  proceedings 
thereat  are  regulated  not  by  law  but  by  the  court. 

When  Execution  Sale  Complete. 

§  1 7.  At  common  law  in  a  sale  under  peri  facias, 
if  the  officer  follows  the  law  and  established  regulations,  in 
seizing  and  selling  the  property,  the  sale  is,  as  a  rule,  com- 
plete and  valid  when  the  property  is  stricken  off  to  the  high- 
est bidder,  while  judicial  sales  are  incomplete  until  ratified 
by  the  court  under  whose  order  they  were  made.  In  ju- 
dicial sales  even  if  the  sale  is  made  by  the  officer  in  a  differ- 
ent manner  than  that  directed  by  the  court,  still  it  is  valid 
if  approved  by  the  court,  while  on  the  other  hand,  if  the  sale 
Avas  made  in  all  things  in  conformity  to  the  directions  of  the 
court,  the  sale  may  vet  be  avoided  by  a  withholding  of  con- 
firmation. It  will  at  once  be  seen  that  the  line  of  demar- 
cation between  judicial  and  execution  sales  is,  that  in  the 
former  the  court  is  the  vendor  and  in  the  latter  the  executive 
officer  of  the  court  —  the  sheriff  —  is  the  vendor,  and  confir- 
mation is  required  in  the  one  and  not  necessary  in  the  other. 

(Noland  v.  Barrett.  122  Mo.  181  —  26  S.  W.  Rep.  602  —  43  Am.  St. 
Eep.  572:  Taylor  v.  Gilpin,  3  Bush.  544:  Dresbach  v.  Stein.  41  Ohio 
St.  70;  Dale  v.  Shirley.  5  B.  Mon.  402:  Shindel  v.  Keedy,  43  Md.  413; 
McKee  v.  Lineberger,  69  N.  C.  217:  Campbell  v.  Johnston,  4  Dana,  178; 
Forman  V.  Hunt.  3  Dana.  614:  Andrews  v.  Scotton.  2  Bland.  629:  Ault- 
man  v.  Seiberling,  31  Ohio  St.  201.) 

Further  Elements  of  Difference. 

§  18.  There  is  yet  another  element  of  distinction 
between  judicial  sales  and  sales  under  writs  of  execution  in 
proceedings  at  law,  and  that  is  that  the  former  invariably 
occur  in  proceedings  either  strictly  in  rem  or  quasi  in  rem, 
which  is  not  the  case  with  the  latter. 

(Wyman  v.  Campbell,  6  Port,  219  —  31  Am.  Dee.  677;  McPherson  v. 
Cunliff,  11  S.  &  R.  422  —  34  Am.  Dee.  642:  Hudson  v.  Cable.  97  X.  C. 
26o_i  S.  E.  Bep.  688;  Reinach  v.  Railway  Co..  58  Fed.  Eep.  33:  Mohr 
v.  Manierre,  101  U.  S.  417:  Elliott,  v.  Shuler.  50  Fed.  Eep.  454:  Grignon, 
V.  Aster.  2  How.  319:  Beauregard  v.  Xew  Orleans,  18  How.  497;  Floren- 
tine v.   Barton,  2  Wall.  210.) 

And  execution  sales  have  been  held  to  be  affected  by  the 
statute  of  frauds,  though  judicial  sales  are  not. 

(Halleck  v.  Guy,  9  Cal.  isi  —  70  Am.  Dec.  643;  Warfield  v.  Dorsey, 
30  Md.  200-  -  17  Am.  Hep.  562;  Watson  v.  Violett,  2  Duv.  332;  Blagden 
v.  Bradleau,  12  Ves.  466.) 


QUASI-JUDICIAL  SALES. 


67 


Strictly  speaking  a  judicial  sale  is  made  during  the  pen- 
dency of  the  litigation  while  an  execution  sale  is  made  subse- 
quent to  the  termination  of  the  suit. 

(Alexander  v.  Howe,  85  Va.  198  —  7  S.  E.  Rep.  218.) 

In  execution  sales  the  sheriff  sells  by  the  naked  authority 
of  the  writ  and  a  conformation  to  the  Law  is  essential,  else  his 
sale  will  be  irregular  or  void  according  to  the  materiality  of 
his  departure  from  the  requirements  of  the  statute. 

(Noland  v.  Barrett,  122  Mo.  181  —  26  S.  W.  Rep.  692  —  43  Am.  St. 
Rep.  572;  Valle  v.  Fleming,  29  Mo.  152  —  77  Am.  Dec.  557;  Evans  V. 
Snyder,  64  Mo.  516;  Henry  v.  McKerlie,  78  Mo.  416;  Snider  v.  Coleman, 
72  Mo.  568.) 

QUASI-JUDICIAL    SALES. 

Execution  Sales  Required  to  be  Confirmed. 

§  19.  Under  the  definition  heretofore  laid  down  of  a 
judicial  sale,  execution  sales  by  the  sheriff  under  writs  of 
execution,  are  necessarily  excluded,  as  a  general  rule,  though 
in  several  states  execution  sales  are  really  judicial,  or  at  least 
partake  of  the  nature  of  judicial  sales.  Among  these  states 
are  Kansas,  Washington,  Indiana,  Ohio,  Oregon,  North  and 
South  Dakota. 

(Par.  4556,  Gen.  Sts.  Kan.  1889;  §  508,  vol.  2,  Hill's  Code  of  Wash.; 
Laws  1875  of  Indiana;  §  5398,  Rev.  Sts.  1890  of  Ohio;  §  296,  Rev.  Sts. 
1892  of  Oregon;   §  5539,  Rev.  Code  of  N.  Dak.) 

It  would  be  a  misnomer  to  call  these  judicial  sales,  but 
they  are  rather  quasi-judicial.  In  these  states  the  statute 
requires  that  the  sale  under  an  ordinary  execution  based 
upon  a  simple  money  judgment  must  be  reported  back  to  the 
court  and  must  be  confirmed  by  it.  Until  such  report  and 
confirmation  the  sale  is  no  more  complete  than  if  it  were 
conducted  by  a  master  in  a  proceeding  in  chancery  under  a 
decree  or  order  of  sale.  Execution  sales  in  these  states  are 
not  binding  until  sanctioned  by  the  court  by  its  confirming 
order,  which  is  spread  upon  the  record.  The  entire  proceed- 
ings of  the  officer  under  the  writ  are  thus  adopted  by  and 
made  the  proceedings  of  the  court  just  as  in  sales  in  chancery. 
The  sale  is  therefore  surrounded  with  the  same  formalities 
as  strict  judicial  sales.     But  the  execution  is  devoid  of  any 


68  VOID  JUDICIAL  AND   EXECUTION  SALES. 

of  the  essentials  of  an  order  of  sale,  for  it  is  a  mere  direction 
or  command  on  the  officer  to  make  the  required  amount  of 
money  out  of  the  defendant's  property. 

(Wilcox  v.  Eaben.  2G  Neb.  368  —  38  X.  W.  Rep.  844  —  8  Am.  St.  Rep. 
207 ;  Linenwebber  v.  Brown,  24  Ore.  545  —  34  Pac.  Rep.  475 ;  O'Brien 
v.  Gaslin,  20  Neb.  347  —  30  N.  W.  Rep.  274;  Johnson  v.  Lindsay,  24 
Kan.   514.) 

Effect  of  Confirming  Order. 

§  20.  But  such  confirmation  is  merely  a  determination  of 
the  regularity  of  the  proceedings  had  under  the  writ,  and 
supplies  only  defects  and  irregularities  which  are  not  in  their 
nature  jurisdictional.  Hence,  the  confirming  order  can  not 
cute  inherent  infirmities  in  the  judgment  whereon  the  writ 
emanated. 

(Real  Estate  Co.  v.  Hendrix,  2S  Ore.  485  —  42  Pae.  Rep.  514  —  52  Am. 
St.  Rep.  800;  Koehler  v.  Ball,  2  Kan.  160  —  S3  Am.  Dec.  541.) 

STATURE  OF  CEKTAIN  OTHER  SALES. 

Sales  in  Attachment  Proceedings. 

§  21.  There  are  certain  sales  arising  out  of  mixed  cases 
of  law  and  equity,  in  which  special  executions  are  issued 
under  statutory  enactment,  which  are  neither  strictly  judi- 
cial, as  under  an  order  in  chancery,  nor  are  they  ministerial 
as  at  common  law,  but  partaking  of  both,  such  as  sales  of 
property  in  suits  in  attachment  proceedings. 

If  the  attachment  suit  is  brought  and  the  particular  prop- 
erty taken  under  the  writ,  but  no  personal  service  of  process 
is  had  upon  the  defendant,  as  where  service  is  had  '''in- 
structively by  publication,  and  the  defendant  does  not  enter 
his  personal  appearance  and  plead  to  the  action,  the  proceed- 
ings are  in  the  nature  of  proceedings  in  rem,  and  the  sale  it 
would  seem  is  of  necessity  a  judicial  one. 

(Griffith  v.  Harvester  Co..  92  Iowa,  634  —  61  N.  W.  Rep.  243  —  54 
Am.  St.  Rep.  573;  Sackett  v.  Rumbaugh,  45  Fed.  Rep.  23;  Damp  v. 
Dane.  20  Wis.  419:  Hawkins  v.  Hughes,  87  N.  C.  115;  Cottrell  v.  Thomp- 
son. 15  N.  J.  L.  344:  Maxwell  v.  Stewart,  22  Wall.   77.) 

Only  the  Property  Attached  is  Affected  in  Such  Case. 

§  22.  Tn  case  of  attachments  where  jurisdiction  is  acquired 
by  constructive  service  of  process  only,  the  judgment  can  be 


CLASSES    OF   JUDICIAL   SALES.  69 

for  no  more  than  for  the  condemnation  of  the  specific  prop- 
erty seized  and  directed  to  be  sold  under  special  execution  or 
order  of  sale,  for,  as  the  court  has  not  acquired  jurisdiction 
of  the  person  of  the  defendant  no  personal  judgment  can  be 
rendered  against  him  in  the  action.  Only  his  property  sub- 
jected to  the  jurisdiction  of  the  court  by  seizure  under  the 
writ  of  attachment  is  before  the  court  for  disposition,  and 
hence,  where  the  statute  requires  the  sale  to  be  confirmed 
such  sales  are  properly  denominated  as  judicial. 

(land  &  Cattle  Co.  v.  Frank,  148  U.  S.  603  —  13  Sup.  Ct.  Rep.  691; 
Railway  Co.  v.  Pinkney,  189  U.  S.  194  —  13  Sup.  Ct.  Rep.  859;  Beaupree 
v.  Rrigham,  79  Wis.  436  —  48  N.  W.  Rep.  596;  Witt  v.  Meyer.  69  Wis. 
595  —  35  N.  W.  Rep.  25;  Pennoyer  v.  Neff,  95  U.  S.  714;  Mining  Co. 
v.  Marsano,  10  Nev.  370;  Pollard  v.  Wegner,  13  Wis.  569:  Chandler  v. 
Hanna,  73  Ala.  39();  McMinn  v.  Whelan,  27  Cat.  300;  Holly  v.  Basa,  39 
Wis.  313;  Morse  v.  Bresby,  25  N.  H.  299.) 

CLASSES  OF  JUDICIAL  SALES. 
Three  General  Classes. 

§  23.  Judicial  sales  are  all  embraced  in  three  general 
classes,  to-wit,  (a)  sales  made  in  chancery  proceedings, 
(b)those  made  in  probate  proceedings  by  administrators,  ex- 
ecutors and  guardians,  when  acting  under  the  order  of  the 
court  in  this  regard,  and  (c)  all  sales  other  than  those  already 
enumerated  where  the  court  orders  by  its  judgment  or  decree 
that  specific  property  be  sold,  and  the  sale  is  made  in  con- 
formity to  such  judgment  or  decree;  among  this  latter  class 
are  sales  to  enforce  municipal  liens  for  street  improvements, 
tax  liens,  liens  of  mechanics  and  materialmen,  mortgage  and 
^nrlor's  liens,  and  sales  in  proceedings  in  partition  and  the 
like; 

(Bonnitt  v.  Mining  Co.,  119  111.  9-7  X.  E.  Rep.  49S;  Hamilton  v. 
Bunn,  22  111.  259;  Canal  Co.  v.  Gordon.  6  Wall.  561;  Hershey  v.  Hershey. 
IS  Iowa,  24;  Insurance  Co.  v.  Goodin,  10  Ohio  St.  557;  Husbands  v. 
Jones.  9  Bush.  218;  Kramer  v.  Rebman,  99  Iowa,  114;  McGraw  V  Bay- 
ard.   96   111.   146.) 

all  in  proceedings  in  equity  for  a  conditional  judgment,  as  a 
court  of  law  has  no  power  to  order  the  sale  of  specific  prop- 
erty, '      ' 
(McLean  v.  McLellan.  10  Pet.  625;  Kramer  v.  Rebman,  9  Iowa,  114.) 


"0  VOID  JUDICIAL   AND   EXECUTION    SALES. 

having  only  concurrent  jurisdiction,  in  proper  cases,  with  a 
court  of  equity,  to  render  judgment  for  the  debt,  to  pay 
which  equity  can  proceed  to  sell  the  property  involved. 

(Penniman  V.  Hollis,  13  Mass.  429;  Armidon  v.  Peek,  11  Met.  467.; 

Sales  in  Foreclosure  of  Mechanics'  Liens  in  Georgia  not 
Judicial. 

§  24.  In  Georgia  it  is  held  that  a  mechanic's  lien  is  en- 
forcible  at  law,  and  not  by  suit  in  equity,  and  that  equity 
has  no  jurisdiction  in  such  cases  unless  there  is  some  impedi- 
ment or  difficulty  charged  to  exist  which  would  render  the 
specific  remedy  given  by  the  statute  for  their  foreclosure  una- 
vailable, in  which  case  only,  has  equity  jurisdiction. 

(Coleman  v.  Freeman,  3  Ga.  137;  Pease  v.  Seranto,  11  Ga.  33;  Powers 
v.  Cray,  7  Ga.  206.) 

VOID  AND  VOIDABLE  SALES. 

Distinction  between  Void  and  Voidable  Sales. 

§  25.  All  execution  and  judicial  sales  commonly  desig- 
nated as  void  may  be  divided  into  two  general  classes,  within 
the  one  or  the  other  of  which  all  void  sales  must  necessarily 
fall. 

There  are  sales  void  by  reason  of  the  want  of  authority  in 
the  court  to  make  or  enter  the  judgment  or  decree  upon 
which,  or  the  order  of  sale  under  which  it  is  had,  and  sales 
based  upon  valid  judgments  or  decrees,  or  on  sufficient  orders 
of  sale  which  are  notwithstanding  all  this  invalid  by  reason 
of  some  vice  or  irregularity  in  the  proceedings  subsequent  to 
the  issuance  of  the  execution  or  the  making  of  the  order  un- 
der which  the  sale  was  had.  It  is  manifestly  apparent  that  all 
sales  included  in  the  latter  class  are  not  really  void.  But 
the  former  are  unconditionally  void  and  of  no  effect  for  any 
purpose  and  not  susceptible  of  being  validated  at  the  instance 
of  any  one. 

Void  and  Voidable  Denned. 

§  26.  In  its  strict  legal  signification  a  void  act  is  one 
devoid  of  letral  force  or  efficacy,  and  as  a  necessary  result  an 
absolute  nullity,  not  binding  on  any  one  nud  wholly  incapable 
of  ratification,  while  a  voidable  net  or  deed  is  one  which, 
though  being  subject  to  avoidance,  cancclktion  or  annulment 


VOID  AND   VOIDABLE  SALES.  .1 

by  reason  of  some  inherent  defect  <>r  vice,  has  nevertheless 
some  force  or  effect,  and  therefore  not  an  entire  nullity.  A 
voidable  act  is  not  void  in  the  sense  of  being  incapable  of 
giving  rise  to  rights  or  obligations  and  not  susceptible  of 
confirmation  or  ratification,  expressly  or  by  implication,  but 
on  the  contrary  is  capable  of  being  ratified,  after  which  its 
efficacy  is  equivalent  to  that  of  an  original  valid  act. 

Who  Bound  by  a  Voidable  Act. 

§  27.  A  voidable  act  is  obligatory  on  all  the  world  until 
repudiated  by  the  person  with  whom  it  originated,  or  set 
aside  by  competent  authority,  because  of  its  irregularity  and 
voidable  character.  It  may  subsequently  be  validated  in 
various  ways,  as  by  confirmation  of  a  judicial  tribunal,  or  by 
ratification  of  the  party  himself.  The  chief  element  of  dis- 
tinction between  a  void  act  or  deed  and  one  merely  voidable 
is,  that  every  stranger  may  take  advantage  of  the  former, 
but  not  so  with  the  latter. 

(Jackson  v.  Houston,  84  Tex.  622  —  19  S.  W.  Eep.  799;  Sager  v.  Mead, 
164  Pa.  St.  125  —  30  Ati.  Ecp.  284;  Bennett  v.  Mattingly,  110  Jnd.  197 
—  10  N.  E.  Rep.  299;  Johnson  v.  Jouchert,  124  Ind.  105  —  24  N.  E.  Rep. 
580;  Bromley  v.  Goodrich.  40  Wis.  131  —  22  Am.  Rep.  685;  White  v. 
Graves.  107  Mass.  325  —  9  Am.  Rep.  38;  Crocker  v.  Bellange,  6  Wis. 
645  —  70  Am.  Dec.  489;  Allis  v.  Billings,  6  Met.  417  —  39  Am.  Dec.  744; 
Somes  v.  Brewer,  2  Pick.  184  — 13  Am.  Dec.  406;  Gall  v.  Fyberger,  75 
Ind.  98;  Terrell  v.  Anchauer,  14  Ohio  St.  80:  Emmet*  v.  Yandes.  60  Ind. 
548;  Robinson  v.  Murphy,  69  Ala.  543;  Murchison  v.  White,  54  Tex.  78; 
Lyon  v.  Phillips,  106  Pa.  St.  57;  Cummings  v.  Powell,  S  Tex.  85;  Pearsall 
v.  Chapin.  44  Pa.  St.  9;  Wright  v.  Wright,  97  Ind.  444;  Ex  parte  Lange. 
18  Wall.  163;  Long  v.  Dixon,  55  Ind.  552;  Alexander  v.  Nelson.  42  Ala. 
462.) 

Void  and  Voidable  Sometimes  Indiscriminately  Employed. 

§  28.  Law  writers,  courts  in  their  opinions,  and  legisla- 
tures in  the  enactment  of  statutes  have,  as  a  rule,  used  the 
terms  void  and  voidable  interchangeably;  in  many  instances 
employing  the  former  when  in  fact  the  signification  of  the 
latter  was  intended.  Manifestly  in  such  case  void  should  be 
construed  as  meaning  voidable  •merely,  and  not  given  the 
meaning  of  the  absolute  quality  of  invalidity.  Much  confu- 
sion and  uncertainty  has  resulted  from  this  indiscriminate 
employment  of  these  terms  which  mifirht  have  been  averted  bv  a 
more  careful  discrimination  in  this  regard.     Accovdinclv, 


?2  VOID  JUDICIAL   AND   EXECUTION    SALES. 

when  the  principle  inculcated  by  the  rule  or  the  tenor  of  the 
provisions  of  a  statute  manifestly  refer  to  voidable  the  term 
void  is  inadvertently  used  in  many  decisions  of  courts,  in 
many  statutes  and  frequently  in  the  writings  of  authors. 
The  investigator  must  construe  these  terms  according  to  the 
circumstances  which  environ  each  individual  transaction  and 
ascertain  the  true  intent. 

(Howard  v.  Turner.  155  Pa.  St.  349  —  26  Atl.  Rep.  753  —  35  Am.  St. 
Rep.  883;  Gibson  v.  Railway  Co.,  164  Pa.  St.  142  —  30  Atl.  Rep.  30S — 
44  Am.  St.  Rep.  586;  Johnson  V.  Insurance  Co.,  51  Wis.  570  —  8  N.  W. 
Rep.  397;  Richardson's  Estate,  132  Pa.  St.  292  —  19  Atl.  Rep.  82;  Brom- 
ley v.  Goodrich,  40  Wis.  131  —  22  Am.  Rep.  6S5;  Lyon  v.  Phillips,  106 
Pa.  St.  57;  Kearney  v.  Vaughn,  50  Mo.  284;  Mitchell  v.  Parker,  25 
Mo.  31.) 

What  Meaning  Attributed  to  Void  and  Voidable. 

§  29.  The  cases  abundantly  show  that  the  term  void  does 
not  always  mean  null  and  incapable  of  confirmation ;  but  its 
true  meaning  is  always  to  be  determined  from  all  the  lan- 
guage used  and  the  intent  thereby  manifested  in  each  par- 
ticular instance. 

(Waggoner  v.  Mann,  83  Iowa.  17  —  4S  X.  W.  Rep.  1065;  Green  v. 
Kemp,  13  Mass.  515  —  7  Am.  Dec.  169;  Ellis  v.  Peck.  45  Iowa,  112; 
Crosley  v.  Arkwright,  2  Tenn.  605:  Van  Shaak  v.  Robbins.  36  Iowa.  201; 
Murchison  v.  White,  54  Tex.  78;  Ewell  v.  Daggs,  108  U.  S.  143  —  2  Sup. 
Ct.  Rep.   408.) 

This  rule  is  an  important  one  in  the  determination  of  the 
distinction  between  void  and  voidable  acts,  a  distinction  of 
the  highest  consequences  and  of  the  utmost  importance  to 
third  persons.  To  draw  this  line  of  demarcation  between 
void  and  voidable  conveyances  in  judicial  proceedings  often 
involves  nice  distinctions,  and  yet,  in  legal  effect,  an  art  or 
deed  is  never  void  unless  it  is  so  utterly  without  legal  validity 
as  to  bind  no  one  in  any  degree. 

A  conveyance  made  in  consummation  of  a  judicial  sale  can 
not  be  said  to  be  utterly  void  unless  it  is  of  no  effect  what- 
ever, and  incapable  of  confirmation  or  ratification. 

(Burris  v.  Kennedy,  108  Cal.  331—41  Pac.  Rep.  458;  Boyd  v.  Blank- 
man,  29  Cal.  19  —  87  Am.  Dec.  146.) 

Subject  only  to  being  defeated  in  some  attack  for  that  pur- 
pose, a  voidable  sale  passes  the  legal  title  to  the  purchaser, 


DEGREES   OF    VOIDSTESS.  73 

and  the  proceedings  are  invulnerable  when  assailed  col- 
laterally. On  the  other  hand  a  conveyance  that  is  void  con- 
veys nothing,  is  incapable  of  ratification,  and  its  infirmity  is 
subject  to  being  shown  in  a  collateral  proceeding  and  by  any 
one  interested  in  the  property  involved. 

(Moody  v.  Mueller,  72  Tex.  035—  10  S.  W.  Rep.  727  —  13  Am.  St. 
Eep.  839.) 

DEGKEES  OF  VOIDNESS. 

Absolute  Nullities. 

§  30.  Voidness  is  properly  a  quality  divisible  into  three 
distinct  degrees,  all  acts  and  deeds  popularly  designated  as 
being  void,  must  as  a  necessary  consequence  fall  within  one 
or  the  other  of  these  degrees.  Accordingly  an  act  may  be 
void  to  the  extent  that  it  is  as  if  it  had  never  taken  place  — 
an  absolute  nullity  for  all  intents  and  purposes,  binding  no 
one,  and  neither  creating  nor  conferring  any  rights  upon  any 
one  —  void  in  such  a  degree  that  any  stranger  may  assert  its 
invalidity  and  infirmity  at  any  time  and  anywhere  and  take 
advantage  of  it  at  his  liberty.  This  is  the  strict  technical 
definition  of  a  void  act. 

(Ewell  v.  Daggs,  108  U.  S.  143  —  2  Sup.  Ct.  Eep.  40s  :  Weeks  v. 
.Bridgeman,  150  U.  S.  541  —  16  Sup.  Ct.  Rep.  72;  Burris  v.  Kennedy, 
108  Cal.  331—41  Pac.  Rep.  458;   Cummings  v.  Powell,   S  Tex.  80.) 

Qualified  Void  Acts. 

§  31.  Then  an  act  may  be  void  in  a  measure  only,  or  for 
some  purposes,  but  not  so  entirely  without  legal  efficacy  as  to 
be  incapable  of  confirmation  or  ratification,  nor  so  uncon- 
ditionally without  effect  as  not  to  afford  protection  to  inno- 
cent parties  to  whom  rights  have  inured  thereunder;  such 
acts  are  effectual  until  avoided  by  some  act  or  proceeding, 

(Vogelsang  v.  Null,  67  Tex.  465  —  3  S.  W.  Rep.  451:  Johnson  v.  In- 
surance Co..  51  Wis.  570—8  N.  W.  Rep.  297:  O'Donnell  v.  Clinton,  145 
Mass.  461  —14  N.  E.  Rep.  747:  White  v.  Graves.  107  Mass.  325  —  '.)  Am. 
Rep.  38:  Cray  v.  Stewart,  33  Gratt.  351;  Wolfe  v.  Davis,  74  N.  C.  597; 
Boggs  v.  Howard,  40  Tex.  153.) 

thonevh  acts  and  deeds  are  sometimes  designated  as  void  be- 
cause  lacking  the  element  of  validity  until  confirmation,  but 
such  are  nevertheless  only  voidable,  because,  if  strictly  void, 
no  validity  could  be  infused  therein  by  such  confirmation. 

M'well  v.  Daggs,  108  U.  S.  143  —  2  Sup.  Ct.  Rep.  408;  Weeks  v. 
Bridgeman,  159  U.  S.  541  —  16  Sup.  Ct.  Rep.  72.) 


74  VOID  JUDICIAL  AND   EXECUTION   SALES. 

And  lastly,  an  act  may  be  void  by  operation  of  law  to  the 
extent  that  he  who  desires  to  avail  himself  of  its  benefits 
must  likewise  provide  an  adequate  compensation  for  the  en- 
joyment he  has  received.  But  this  also  falls  within  the  de- 
gree of  voidableness,  though  differing  in  its  general  nature. 

(Anderson  v.  Roberts,  18  Johns.  513  —  9  Am.  Dee.  235;  Boyd  v. 
Blankman,  29   Cal.   19  —  S7  Am.  Dec.   146.) 

STATUTE  OF  FKAUDS. 

Does  not  Apply  in  Judicial  Sales. 

§  32.  By  becoming  a  purchaser  at  a  chancery  sale  a 
party  submits  himself  to  the  jurisdiction  of  the  court,  as  far 
as  any  matter  relating  to  the  sale  is  concerned,  and  to  this 
extent  becomes  a  party  to  the  proceedings  of  sale.  Acord- 
ingly,  after  the  confirmation  of  a  sale  in  chancery  a  purchase 
made  by  oral  bid  may  be  enforced  notwithstanding  the  pur- 
chaser sought  to  be  charged  has  not  subscribed  any  agreement 
or  memorandum. 

(Freeman  v.  Watkins.  52  Ark.  446  —  13  S.  W.  Rep.  79:  Maul  v.  Bell- 
man, 39  Neb.  322  —  58  ST.  W.  Rep.  112;  Andrews  v.  O'Mulvaney,  112 
X.  Y.  567  —  20  X.  E.  Rep.  374;  Gregory  v.  Tingley,  IS  Xeb.  31S  — 25 
X.  W.  Rep.  SS;  Hildreth  v.  Turner,  89  Va.  858  —  17  S.  E.  Rep.  471; 
Roberts  v.  Smith.  26  S.  E.  Rep.  579;  Halleck  v.  Guy.  9  Cal.  181  —  70 
Am.  Dec.  643;  Fulton  v.  Moore,  25  Pa.  St.  468;  Smith  v.  Arnold,  5 
Mason,  414;  The  Monte  Allegre,  9  Wheat.  616.) 

Confirmation  is  an  adjudication  final  in  its  nature,  the 
contract  of  purchase  thereafter,  under  the  principles  of  res 
(id judicata  is  elossed,  and  the  possibilities  of  again  consider- 
ing a  question  which  has  been  finally  adjudicated  i<  termi- 
nated. It  is  upon  this  principle  of  law  that,  after  judicial 
sales  have  received  the  sanction  of  the  court  by  the  entry  of 
the  proper  order  of  confirmation,  the  purchaser  and  others 
are  precluded  from  attacking  the  validity  of  the  proceedings 
of  sale,  under  the  doctrine  of  the  statute  of  frauds,  for  the 
want  of  an  agreement,  note  or  memorandum  in  writing,  for 
the  court  will  not  allow  a  repudiation  of  its  own  proceedings 
in  this  manner. 

Under  the  general  principles  of  law  applicable  to  judicial 
salos  in  this  regard,  there  is  no  sale  until  confirmation,  and 
hence  neither  party  is  therefore  bound,  and  each  is  at  liberty 


STATUTE   OF    FRAUDS. 


75 


to  refuse  to  further  proceed  for  cause  and  may  resist  the  ap- 
plication for  confirmation.  The  same  rule  applies  to  pro- 
bate sales  where  confirmation  is  a  requisite,  as  these  arc  con- 
sidered judicial  sales. 

(Noland  v.  Barrett,  L22  Mo.  181  —  26  S.  W.  Rep.  692  —  43  Am.  St. 
•Re\).  572:  Throckmorton  v.  Pence,  121  Mo.  50  —  25  S.  W.  Kep.  S43; 
Estes  v.  Alexander,  90  Mo.  453  —  2  S.  W.  Rep.  414.) 

In  some  jurisdictions  the  authorities  go  still  further  and 
hold  that  judicial  sales  are  not  within  the  statute  of  frauds 
even  before  confirmation,  and  no  memorandum  at  all  is  re- 
quired. 

(Halleek  v.  Guy,  0  Cal.  1S1  —  70  Am.  Dee.  643;  Fulton  v.  Moore,  25 
Pa.  St.  468;  King  v.  Gunnison,  4  Pa.  St.  171;  Roberts  v.  Smith,  94 
Va.  250  —  26  S.  E.  Rep.  579;  Warfield  v.  Dorsey,  39  Md.  299.) 

Administrator's  Sales  in  Illinois  within  the  Statute. 

§  33.  Notwithstanding  it  may  be  said  that  the  doctrine 
promulgated  by  a  vast  preponderance  of  judicial  authority  is 
that  judicial  sales  are  not  within  the  statute  of  frauds,  yet 
it  is  held  in  Illinois  that  sales  of  real  estate  by  administrators 
arc  within  the  provisions  of  the  statute  of  frauds  and  per- 
juries, and  can  not  be  enforced  in  the  absence  of  a  memo- 
randum signed  by  those  fiduciaries. 

(Bozza  v.  Rowe,  30  111.  198  —  83  Am.  Dee.  184.) 

Execution  Sales  within  the  Statute. 

§  34.  As  to  execution  sales  the  authorities  are  conflicting 
upon  the  question  as  to  whether  or  not  they  are  within  the 
statute.  On  the  one  hand  it  is  contended  that  it  is  essential 
to  the  validity  of  the  sale  that  it  be  supported  by  a  memo- 
randum sufficient  within  the  statute  of  frauds ; 

(Chapman  v.  Harwood,  8  Blackf.  82  —  44  Am.  Dec.  736:  Duval  v. 
Waters.  1  Bland  Ch.  5G9  —  IS  Am.  Dec.  350;  Jackson  v.  Catlin.  2  Johns. 
248  — ?>  Am.  Dee.  415;  Spenee  v.  Pearce,  10  G.  &  J.  205:  Remmington 
v.  Linthicum,  14  Pet.  84:  Hunt  v.  Gregg,  8  Blackf.  105;  Gassard  v. 
Ferguson,  54  Ind.  519;  Ruckle  V.  Barbour,  4s  Ind.  274.) 

while  cu  the  other  hand  it  is  frequently  contended  with  mani- 
fest show  of  reason  that  the  statute  has  no  application  what- 
ever to  sales  of  real  estate  made  under  the  coercive  process 
of  law,  and  that  the  mere  compliance  of  the  sheriff  with  the 


;  VOID  JUDICIAL   AXD   EXECUTIOX   SALES. 

requirements  of  the  statute  regulating  compulsory  sales  is 
sufficient  in  this  regard. 

(Armstrong  v.  Vroman,  11  Minn.  220  —  88  Am.  Dec.  81;  Hand  v. 
Grant,  5  S.  &  M.  SOS  —  43  Am.  Dee.  52S ;  Xiehol  v.  Ridley.  5  Yerg.  63  — 
26  Am.  Dec.  254:  Endicott  v.  Penny,  14  S.  &  M.  144:  Insurance  Co.  v. 
Loomis,  11  Paige,  431;  Stewart  v.  Garvin,  31  Mo.  36;  Hageman  v. 
Johnson,  35  Barb.  200.) 

In  Alabama  it  is  held  that  sheriff's  sales  under  executions 
arc  within  the  statute  but  in  contemplation  of  law  that  officer 
is  the  agent  of  both  the  execution  defendant  and  purchaser, 
and  may,  by  his  memorandum  of  the  terms  and  particulars  of 
the  sale,  satisfy  the  requirements  of  the  statute.  That  the 
memorandum  may  be  gathered  from  the  officer's  indorse- 
ments upon  the  writ  returned  into  court,  and  subsequent 
deed  executed  in  consummation  of  the  sale. 

(White  v.  Farley,  SI  Ala.  563  —  8  So.  Rep.  215;  Robinson  v.  Garth, 
6  Ala.  204  —  41  Am.  Dec.  47;  Jenkins  v.  Harrison.  66  Ala.  345.) 

The  Author's  Views. 

§  35.  While  there  may  be  judicial  expression  to  the  effect 
that  the  statute  of  frauds  has  no  application  to  sales  under 
the  process  of  law,  yet  it  is  manifest  that  upon  principle  such 
sales  are  within  the  statute,  though  it  is  equally  evident  that 
the  memorandum  need  not  be  subscribed  by  the  purchaser 
or  officer,  nor  need  any  particular  memorandum  be  made  at 
all,  the  record  as  evidencing  the  sheriff's  compliance  with 
the  statutory  requirements  in  conducting  the  sale  is  sufficient 
to  satisfy  the  statute,  the  officer  in  this  behalf,  acting  as  the 
agent  of  the  execution  debtor  and  the  purchaser,  in  contem- 
plation of  law,  and  is  the  mere  instrument  of  the  law  to 
transfer  the  title  from  the  execution  defendant  to  the  pur- 
chaser. To  this  extent  therefore  it  is  apparent  that  sheriff's 
sales  under  executions  are  within  the  statute  of  frauds. 
Without  any  written  evidence  of  the  transaction  by  way  of 
record  or  return  no  sale  can  bo  said  to  have  taken  place,  as 
the  transfer  is  made,  not  by  directions  from  the  court,  but 
through  the  agency  of  the  law,  by  a  ministerial  officer,  and 
must  of  necessity  be  evidenced  by  written  memorials  and 
not  merely  by  oral  evidence.  This  is  tho  most  rational  rule 
deducible  from  the  concensus  of  all  judicial  enunciations 
upon  the  proposition  involved. 


DUE  PROCESS   OF   LAW. 


DUE  PROCESS  OF  LAW. 


77 


Comprehensive  Definition  Impossible. 

§  36.  Owing  to  the  illimitable  combinations  and  permu- 
tations of  circumstances  which  environ  the  multitudinous 
business  transactions  of  mankind  it  is  impossible  to  formu- 
late a  definition  of  the  constitutional  guaranty  of  "  due  pro- 
cess of  law"  sufficiently  comprehensive  to  embrace  all  cases 
which  may  possibly  arise.  Only  a  definition  general  in  its 
nature  is   therefore   possible  of  promulgation. 

(Lent  v.  Tillson.  140  U.  S.  316  —  11  Sup.  Ct.  Rep.  825;  Chauvin  v. 
Valiton,  8  Mont.  451  —  20  Pac.  Rep.  658;  Davidson  v.  New  Orleans,  96 
U.  S.  97;  Ex  parte  Ulrich,  42  Fed.  Rep.  5S7.) 

In  this  regard  the  supreme  court  of  Minnesota  recently 
said :  "  No  court  has  ever  attempted  to  give  a  complete  or 
exhaustive  definition  of  the  term  '  due  process  of  law',  for  it 
is  incapable  of  any  such  definition.  All  that  can  be  done 
is  to  lay  down  certain  general  principles,  and  apply  these  to 
the  facts  of  each  case  as  they  arise  ". 

(Bardwell  v.  Collins,  44  Minn.  97  —  46  N.  W.  Rep.  315;  State  ex  rel. 
Blaisdell  v.  Billings,   55  Minn.   467  —  57  N.  W.   Rep.   794.) 

Interpretation  of  the  Term. 

§  37.  Due  process  of  lawT  has  been  interpreted  as  meaning 
that  notice  or  summons  by  which  a  party  against  whom  a 
proceeding  in  a  court  of  justice  is  instituted  is  tendered  his 
day  in  court,  together  with  the  right  to  join  an  issue  and  be 
heard  in  defense  before  a  judgment  can  be  pronounced 
against  him  or  execution  issued  by  means  of  which  his  prop- 
erty may  be  condemned  to  satisfy  such  judgment, 

(Rouse  v.  Donovan,  104  Mich.  234  —  62  N.  W.  Rep.  359  —  53  Am.  St. 
Rep.  457  ) 

And  again,  due  process  of  law,  and  law  of  the  land, 
have  been  considered  as  equivalents  and  hence  of  synony- 
mous import,  referring  to  general  public  law  operating  upon 
all  the  members  of  a  community  alike,  under  similar  circum- 
stances. 

(Harding  v.  People,  160  111.  459  —  43  N.  E.  Rep.  624  —  52  Am.  St. 
Rep.  344;  Braceville  Coal  Co.  v.  People.  147  111.  66  —  35  N.  E.  Rep.  62  — 
37  Am.  St.  Rep.  206;  State  v.  Jalow,  129  Mo.  163  —  31  S.  W.  Rep.  7S1  — 


78  VOID   JUDICIAL   AND   EXECUTION   SALES. 

50  Am.  St.  Eep.  443;  Millett  v.  People,  117  111.  294  —  7  N.  E.  Eep.  631 
—  57  Am.  Rep.  8C9;  Merchant  v.  Railway  Co.,  153  U.  S.  3S0  — 14  Sup. 
Ct.   Rep.  894.) 

Notice  an  Essential  Requirement. 

§  38.  The  proposition  is  axiomatic  in  American  jurispru- 
dence that  in  order  to  constitute  due  process  of  law  in  a 
judicial  proceeding,  the  party  sought  to  he  hound  by  judicial 
sentence,  must  have  sufficient  notice,  either  actual  or  con- 
structive, of  the  pendency  of  the  proceedings  against  him. 

(Dorranee  v.  Raynsford,  67  Conn.  1  —  34  Atl.  Rep.  706  —  52  Am.  St. 
Rep.  266;  Mining  Co.  v.  Mining  Co.,  12  Colo.  46  —  20  Pac.  Rep.  771  — 
13  Am.  St.  Rep.  204;  Kuntz  v.  Sumption,  117  Ind.  1  —  19  N.  E.  Rep. 
474;  Hutson  v.  Woodbridge  Pro.  Dist..  79  Cal.  90  —  21  Pae.  Rep.  435; 
Chauvin  v.  Valiton,  8  Mont.  451  —  20  Pac.  Rep.  658 ;  McEneny  v.  Town 
of  Sullivan,  125  Ind.  407  —  25  N.  E.  Rep.  540 ;  Ulman  v.  Mayor,  72  Md. 
587  —  20  Atl.  Rep.  141;  Hassail  v.  Wilcox,  130  U.  S.  493  —  9  Sup.  Ct. 
Rep.  590;  Murdock  v.  Cincinnati,  89  Fed.  Rep.  891;  Scott  v.  Toledo,  36 
Fed.  Rep.  385.) 

The  notice  required  must  be  such  as  is  prescribed  or  au- 
thorized by  law,  for  notice  not  so  authorized  or  prescribed  is 
in  legal  effect  no  notice  at  all.  and  hence  wholly  insufficient 
to  support  the  judgment  of  the  court, 

(Cummings  v.  Stark,  138  Ind.  94  —  34  N.  E.  Rep.  444;  Kuntz  v. 
Sumption,  117  Ind.  1  —  19  N.  E.  Rep.  474.) 

because  it  is  a  fundamental  principle  of  American  jurispru- 
dence that  a  party  must  have  his  day  in  court,  which  he  can 
manifestly  not  have  in  the  absence  of  lawful  notice. 

(Scudder  v.  Jones.  134  Ind.  547  —  32  N.  E.  Rep.  221;  Railway  Co.  v. 
Railway  Co.,  116  Ind.  57S  —  19  X.  E.  Pep.  440:  McColhun  v.  Chi,  12S 
Ind.  304  —  27  X.  E.  Rep.  725;  Davis  v.  Railway  Co..  114  Ind.  364  —  16 
N.  E.  Rep.  639;  Brosemer  v.  Kelsey,  106  Ind.  504  —  7  N.  E.  Rep.  569.) 

An  Opportunity  to  be  Heard  Essential. 

§  39.  When  the  notice'  required  by  law  has  been  properly 
given,  the  party  to  be  affected  by  the  judicial  proceeding 
must  then  have  an  opportunity  to  be  heard  in  his  defense 
before  some  lawfully  constituted  tribunal  invested  with  au- 
thority to  act  in  the  premises,  as  an  opportunity  to  be  so 
heard  is  absolutely  indispensable  to  the  very  conception  of 
due  process  of  law. 

(People  ex  rel.  Colcuti  v.  Board  of  Health.  140  N.  Y.  1  —  35  N.  E. 
Pep.  320;  Windsor  v.  McVeigh,  93  U.  S.  274;  Stuart  v.  Palmer,  74  N.  Y. 
183.) 


DUE    PROCESS    OK    LAW  .  ?!> 

Manifestly  it  is  apparent  that  due  process  of  law  compre- 
hends not  onlv  notice,  but  also  a  hearing  and  a  judicial  de- 
termination by  way  of  a  final  judgment. 

(Bardwell  v.  Collins,  44  Minn.  97  —  46  X.  W.  Rep.  315;  State  ex  rel. 
Blaisdell  v.  Billings,  55   .Minn.  467  —  57  N.   \Y.   Rep.   794.) 

Power  to  Prescribe  Notice. 

§  40.  Subject  only  to  constitutional  inhibitions  and  uni- 
versally recognized  principles  and  immemorial  usages,  if  is 
conceded  that  states  are  empowered  to  prescribe  what  notice 
shall  be  given  as  well  as  the  manner  in  which  it  must  be 
given,  in  so  far  as  its  own  citizens  are  concerned. 

(Lent  v.  Tillson,  140  U.  S.  316  —  11  Sup.  Ct.  Rep.  825;  Chavaimes  v. 
Priestley,  SO  Iowa.  316  —  45  X.  W.  Rep.  766;  Caldwell  v.  State,  137  U '. 
S.  692  —  11  Sup.  Ct.  Rep.  224;  Slapp  v.  The  Clyde,  44  Minn.  510  —  47 
X.  W.  Rep.  160;  Kuntz  v.  Sumption.  117  Ind.  1  —  19  X.  E.  Rep.  474; 
Hogle  v.  Mott,  62  Vt.  255  —  20  Atl.  Rep.  276.) 

Hence,  while  it  is  unequivocally  denied  with  great  force 
and  combatted  with  much  energy  upon  principles  of  reason, 
that  a  state  is  without  authority  to  authorize  the  entry  of  a 
judgment  wi  personam  against  one  of  its  own  citizens 
brought  into  court  by  constructive  service  of  process  only, 

(Smith  v.  Hurd,  50  Minn.  503  —  52  X.  W.  Rep.  922;  Bardwell  v.  Col- 
lins, 44  Minn.  97  —  46  X.  W.  Rep.  315.) 

yet  it  is  generally  conceded  that  it  may  lawfully  provide  for 
constructive  service  of  process  on  a  resident  who  conceals 
himself  to  avoid  the  personal  service  of  notice  or  can  not  be 
found,  and  his  property  may  be  thus  lawfully  bound.  How- 
ever, it  is  a  condition  precedent  that  he  does  conceal  himself 
so  that  he  can  not  be  served,  or  can  not  be  found,  for  if  he  can 
be  found  by  using  due  diligence  he  is  entitled  to  personal 
service  of  process  under  the  constitutional  guaranty  in  the 
federal  constitution,  and  that  of  nearly  every  state  of  the 
Union. 

If  the  property  proceeded  against  is  withn  the  jurisdiction 
of  the  court  by  seizure,  if  in  an  attachment  proceeding,  or  if 
jurisdiction  is  obtained  otherwise  in  proceedings  in  the  fore- 
closure of  mortgage  and  other  liens,  notice  by  publication  to 
a  non-resident  defendant  is  due  process  of  law,  but  the  relief 
granted  must  nevertheless  be  limited  to  the  specific  property 
subjected  to  the  jurisdiction  of  the  court. 


80  VOID  JUDICIAL  AXD  EXECUTION   SALES. 

(Huling  v.  Railway  &  Improvement  Co..  130  U.  S.  559  —  9  Sup.  Ct. 
Rep.  603;  Lydiard  v.  Chute.  45  Minn.  277  —  45  N.  W.  Rep.  967;  W 'mi- 
free  v.  Bagley,  102  X.  C.  515  —  9  S.  E.  Rep.  198;  Quarle  v.  Abbett,  102 
Ind.  233  —  1  N.  E.  Rep.  476  —  52  Am.  Rep.  662.) 

Constructive  Service  upon  Residents  and  Non-residents. 

§  41.  In  Minnesota  a  mortgage  foreclosure  upon  lands, 
where  notice  was  had  upon  a  resident  defendant  by  publica- 
tion, under  a  statute  authorizing  constructive  service  of  pro- 
cess in  such  cases  upon  resident  and  non-resident  defendants 
alike,  was  held  void,  because  not  due  process  of  law,  as  the 
resident  defendant  is  entitled  to  personal  notice,  and  con- 
structive notice  in  such  case  is  tantamount  to  no  notice  at  all. 

(Barchvell  v.  Collins.  44  Minn.  97  —  46  X'.  W.  Rep.  315;  Smith,  v. 
Hurd,  50  Minn.  503  —  52  N.  W.  Rep.  922.) 


Chapter  II. 

Jurisdiction  and  General  Principles  Involved  in  Juris- 
dictional Inquiries  —  Judgments  and  Decrees  Affect- 
ing Title  to  Land. 

ANALYSIS. 

Section     42.  Meaning  of  Jurisdiction  —  Is  the  Tower  to  Hear  and  De- 
termine. 

43.  Upon  what  Dependent. 

44.  When  Proceedings  are  coram  non  judice. 

45.  ■  When  Proceedings  are  coram  judice. 

46.  'Three  Essentials  in  the  Eight  to  Adjudicate. 

47..  Source  of  Jurisdiction  —  Common  Law  and  Equitable  Ju- 
risdiction. 

48.  Jurisdiction  Granted  by  Constitutional  and  Statutory 

Provision. 

49.  Over  the  Person  of  Defendant. 

50.  Over  Person  of  Defendant  not  in  the  State. 

51.  Measure   of   Jurisdiction: 

52.  — —  Jurisdiction   over   res. 

53.  ■  No  Jurisdiction  in  Appellate  Court  if  None  in  Lower 

Court. 

54.  Jurisdiction  over  Subject-matter  —  How  Conferred. 

55.  Under  Unconstitutional  Act. 

56.  'Appearance  not  a  Waiver  of  a  Lack  of  Jurisdiction. 

57. Conferred  Subsequent  to  Institution  of  Suit. 

58.  ■  Limitation  of  this  Jurisdiction. 

59.  Acquisition  of  Jurisdiction  to  Render  Personal  Judgment 

—  Jurisdiction  of  the  Person  of  Defendant  Essential. 

60.  Constructive  Service  only  Insufficient. 

61.  How  a  Minor  Brought   in. 

62.  Complainant  in  Court  by  Virtue  of  his  Petition. 

63.  Irregular  Process  Served. 

64.  Process  Served  Wanting  in  Substance. 

65.  Defective  Service  and  Failure  of  Service. 

66.  Actual  Notice  —  In  General. 

67.  Record   Disclosing   Service   in    a   Particular   Manner. 

68-  Leaving  Summons  at  Last  Place  of  Residence  Actual 

Service.  ■ 

69.  Pleadings  Showing  Absence  or  Non-residence  of  De- 
fendant. 

6 


82  VOID  JUDICIAL  AND   EXECUTION   SALES. 

Section     70.  Actual  Notice  —  Notice  to  Minors. 

71.  ■  Suits  against  Husband  and  Wife. 

72.  In  Proceedings  of  Sale  by  Administrators. 

73.  Service  of  Process  and  the  Return  —  Effect  when  Served 

by  Unauthorized  Person. 

74.  Service   Required  to  be  Made  by  Particular  Officer. 

75.  Service  by  Party  not  Valid. 

76.  ■  Service  by  Private  Person. 

77.  Written  Admission  of  Service  of  Process. 

78.  Personal  Service  Outside  of  the  State. 

79.  Officer's  Return  of  Service  Conclusive. 

SO.  When    Return   not    Conclusive. 

81.  Defendant  Brought  into  State  by  Fraud  or  Force. 

82.  General   Appearance   by   Defendant   and   its   Effect  —  Ap- 

pearance  Defined. 

83.  Answer   Stricken  as  Insufficient. 

84.  General  Appearance  Waives  Defect  in  Process. 

85.  Waives  Jurisdictional  Defect  in  Issuing  Proce-s. 

88.  Appearance  by  Infants. 

87.  Effect   of    Special    Appearance  —  In    Cases   where    Statute 

does  not  Prohibit  it. 
88. Statutory  Rule  in  Some  States. 

89.  Application  to  Remove  from  State  to  Federal  Court. 

90.  Unauthorized   Appearance   by   Attorney  —  Exposes   Judg- 

ment  to   Collateral   Attack. 

91.  — Rule  of  Collateral  Impeachment  Denied. 

92.  Jurisdiction   to   Render   Judgment,    in    rem  —  Seizure   and 

Notice. 

93.  Sales  by  Guardians  of  Ward's  Lands. 

94.  Sale  of  Perishable  Property  Pendente  lite. 

95.  Only  the  Proptrty  actually  Before  the  Court  Affected. 

96.  Judgment    must   be    Rendered    on    Cause    of    Action 

Stated. 

97.  Foreclosure  of  Mortgage  and  Other  Liens. 

98.  Decree   Assigning   Residue  of  Estate   of   a   Decedent. 

99.  Attachment  of  Lands  in  Justice's  Court. 

100.  Jurisdiction   as   Dependent  on  Amount  in  Controversy  — 

Amount  in  Excess  Renders  Judgment  void. 

101.  No  Jurisdiction  on  Appeal  when  None  Below. 

102.  Amount   below   Legal    Minimum. 

103.  Constructive  Service  of  Process  or  Notice  —  Constructive 

Service  of  Notice  Defined. 

104.  Not  Available  in  Purely  Personal  Actions. 

105.  On  Resident  Defendants. 

106.  Is  in   Derogation  of  Common  Law. 

107.  Essential  Jurisdictional   Facts  must  Appear. 

108.  In  what  (  ases  Permissible. 

109.  Amendment  of  Complaint. 


MEANING  OF  JURISDICTION.  83 

Section  110.  Constructive  Service  of  Process  or  Notice  —  What  Affida- 
vit for  Publication  Musi  Show. 

111.  -Strict  Rule   Prevails  in  gome  States. 

112.  Liberal    Rule    Elsewhere. 

113.  Probative  Facts  must  Appear. 

114. Facts    tnferentially   stated   <  >nly. 

115.  Affidavit    must    show    Action    to    be    one    Mentioned    in 

Statute. 

116.  Affidavit    on    Information    and    Belief. 

117. Object  and  General  Nature  of  the  Action. 

118. Affidavit  must  be  Filed  before  the  Publication. 

119.  Relation  of  Affidavit  to  Order  of  Publication. 

120.  False  Statement  as  to  Cause  of  Action. 

121.  — — -Affidavit    and  Complaint. 

122.  Verified  Complaint  Must  be  Filed. 

123.  Facts    authorizing    Constructive    Service    shown    by 

Return. 

124.  Suits   against   Defunct    Corporations   in   Michigan. 

125    Order   of    Publication    must    Contain    Essential    Par- 
ticulars. 

126.  Issued  by  Clerk  without  Order  from  Court. 

127.  Misnomer  of  Plaintiff  or  Defendant. 

128.  Order  Providing  for  Unauthorized   Service. 

129.  Order  Abridging  the  Time  for  Appearance. 

130.  Publication    for   too    Short    Period. 

131.  — — -Mere  Irregularities  in  Notice  not  Fatal. 

132.  Death  of   Defendant    Pending  Publication. 

133. One  Publication  on   Non-judicial   Day. 

134.  -Unknown  Defendants  Served  Constructively. 

135.  •  Personal    Service   Outside   of   the   State. 

136. Affidavit  made  by  Unauthorized  Person. 

137.  Publication    against    Unknown    on    Petition    against 

Known   <  hvner. 

138.  Disqualification   of  Judge  —  Renders   Proceedings   Invalid. 

139.  Statute  Contravened  makes  Proceedings  Void. 

140.  Loss,    Excess   and   Suspension   of   Jurisdiction  —  Jurisdic- 

tion  Generally   Continues   until   Judgment. 

141.  Lost  by  Appeal  or  Removal. 

142.  -Lost  during  Intervals  between  Regular  Terms. 

143.  Non-attendance    of   Judge. 

144.  Court  sitting  Outside  of  County. 

145.  Jurisdiction  Exhausted  over  Subject-matter. 

146.  Judgment   Beyond  the   Issues. 

147.  Justice  of  the  Peace  absent  on  Day  of  Trial. 

148.  Other  Fatalities  in  Justice's  Proceedings. 

149.  Effect  of  Want  of  Jurisdiction  —  Makes  the  Judgment  and 

Proceedings  Void. 

150.  Administration  on  Estate  of  Living  Person. 


84  VOID  JUDICIAL  AND   EXECUTION   SALES. 

Section  151.  Effect  of  Want  of  Jurisdiction  —  Judicial  Authority  can 
not  be  Delegated. 

152.  Face  of  Record  showing  a  Want  of  Jurisdiction. 

153.  Only  Part  of  Defendants  Summoned. 

154.  Because  Debt  barred  by  Statute  of  Limitations 

155.  Nature   of   Sales   in   Probate   of   Lands   of   a   Decedent  — 

Fundamental  Fact  is  Death  of  Owner. 

156.  Proceedings    in    rem. 

157.  Guardian's   Sales  considered  both  Adversary  and  in 

rem. 

158.  Are  adversary  Proceedings. 

159.  Probate    Sales    when    there    are    no    Debts  —  Adjudication 

of  the  Court  is  Conclusive. 

160.  Finding  of  Probate  Court  only  prima  facie. 

161.  Effect   of   Failure  to   Appoint  Guardian   ad   litem  —  Gen- 

erally Considered  but  an  Irregularity. 

162.  Is   a  Fatal  Infirmity. 

163.  Sale    of    Lands    located    in    Another    County  —  Statutory 

Requirements  as  to  Institution  of  Suit. 

164.  Objection  to  Suit  brought  in  Wrong  County  may  be 

Waived. 

165.  Probate  Sale  of  Lands   in  Another  County. 

166.  Death  or  Disability  of  the  Parties  or  Either  of  Them  — 

Death  of  sole  Plaintiff  or  Sole  Defendant. 

167.  Not  suggested  by  Record  makes  Judgment  Voidable 

only. 

168.  One  of  Several  Defendants  dies  Before  Judgment. 

169.  Death  of  Sole  Defendant  Renders  Judgment  void. 

170.  Death   of  Defendant  pending   Publication   of  Notice. 

171.  Effect  of  the  Death  of  Sole  Plaintiff. 

172.  Jurisdiction  of  Minors  and  Incompetents. 

173.  Decree  vacated  after  Sale  and  its  Effects. 

174.  Actions  against  Married  Women. 

175.  Instances  of  Want  of  Jurisdiction  —  Title  to  Land  in  An- 

other  State. 

176.  Partition  and  Mortgage  Foreclosure  of  Land  in  An- 
other State. 

177.  Decree  holding  Conveyance  in  Another  State  Fraud- 
ulent. 

178.  Sale  by  Administrator  of  living  Owner's  Lands. 

179.  Other  Instances. 

180.  Principles  involved  in  Jurisdictional  Inquiries  —  Presump- 

tions in  Favor  of  Jurisdiction. 

181.  Recital  of  Jurisdictional  Facts  Insufficient. 

182.  No  Presumptions  obtain  in  Direct  Attack. 

183.  Presumptions  where  Jurisdiction  is  Acquired  by  Con- 
structive Notice. 

184.  Extent  of  the  Rule  of  Presumptions. 


MEANING   OF  JURISDICTION.  85 

Section  185.  Principles  involved  in  Jurisdictional  Inquiries  —  Presump- 
tions  nol  Applicable  to  Inferior  Courts. 

186.  Courts  of  Probate  Jurisdiction. 

187.  Conclusiveness  of  Judgments  and   Decrees  —  Parties  and 

Privies. 

188.  Void  as  to  One  only  of  Several  Parties. 

189.  In  what  Capacity  Judgment  Conclusive. 

190.  Suit  commenced  after  Defendant's  Death. 

191.  Proceeding  against  Unknown  Heirs. 

192.  Upon  what  Matters  Conclusive. 

193.  — — -Who   are   Privie-. 

194.  Effect  where  Judgment  or  Decree  is  Void. 

195.  Judgments  Outside  the  l^sue-  not  P>  nding. 

196.  Actions    in    personam    and   Proceedings    in    rem    Dis- 
tinguished. 

197.  Questions  of  Title  Conclusively  Determined. 

198.  Misconception  in  Form  of  Proceeding. 

199.  Conclusiveness  of  Judgments  as  to  Creditors. 

200.  What  Creditors  may  Avoid  a  Judgment. 

201.  Conclusiveness  of  Erroneous  Judgment  where  Sale  made 

before  Reversal  or  Vacation  —  Sale  to  Stranger  without 
Notice. 

202.  Judgment  Creditor  as  Purchaser. 

203.  Sales  subsequent  to  Expiration  of  Judgment  Lien  —  Is  as 

if  no  Lien  of  Judgment  had  ever  Existed. 

204.  Execution  issued  Before  its  Expiration  Preserves  Lien. 

205.  Effect  and  Nature  of  Judgment  Lien  —  Creature  of  Stat- 

ute  and   a   General   Lien. 

206.  •  Upon  what  Property  Lien  Attaches. 

207.  —When  the  Lien  Attaches. 

208.  ■  Lien  attaches  to  Lands  conveyed  in  Fraud  of  Cred- 
itors. 


MEANING  OF  JURISDICTION. 

Is  the  Power  to  Hear  and  Determine. 

§  42.  By  constitutional  provision  or  statutory  enactment 
there  is  conferred  upon  judicial  tribunals  certain  power  to 
take  cognizance  of  the  subject-matter  over  which  the  litiga- 
tion has  risen,  or  which  is  involved  therein,  and  of  the  parties 
to  the  suit,  when  properly  brought  before  them,  and  to  hear 
and  determine  the  issues  made  by  the  parties  litigant,  and 
to  adjudicate  and  exercise  judicial  power  over  the  litigating 
parties,  according  to  established  rules  and  principles  of  law, 
upon  issues  made  in  the  controversy  pending,  whether  the 


86  VOID  JUDICIAL  AND  EXECUTION   SALES. 

same  be  of  law  or  of  fact,  or  both  law  and  fact.  From  the 
very  nature  of  judicial  power,  any  act  or  movement  of  a 
court,  legally  made,  is  the  exercise  of  jurisdiction  as  a  matter 
of  necessity. 

(State  v.  Nelson,  21  Neb.  572  —  32  N.  W.  Rep.  589;  Perry  v.  Morse, 
57  Vt.  509;  Ex  parte  Bennett,  44  Cal.  84;  Vaughn  v.  Congdon,  56  Vt. 
Ill;  Smiley  v.  Sampson,  1  Neb.  56;  Simmons  v.  Saul,  138  U.  S.  439  — 
11  Sup.  Ct.  Rep.  369;  Goodman  v.  Winter,  56  Ala.  410;  Lantz  v.  Maffett, 
102  Ind.  233  —  26  N.  E.  Rep.  195;  Spoors  v.  Coen.  44  Ohio  St.  492  — 
9  N.  E.  Rep.  132;  Hope  v.  Blish,  105  Mo.  85  —  16  S.  W.  Rep.  595.) 

Upon  what  Dependent. 

§  43.  Jurisdiction  does  not  depend  upon  the  particular 
state  of  facts  disclosed  in  the  controversy  presented,  nor  is 
the  existence  of  a  good  cause  of  action  absolutely  essential 
to  vest  jurisdiction. 

(Reed  v.  Reed,  107  N.  Y.  545  —  14  N.  E.  Rep.  442;  Ex  parte  Bigelow, 
113  U.  S.  329  —  5  Sup.  Ct.  Rep.  542;  Hunt  v.  Hunt,  72  N.  Y.  217—. 
28  Am.  Rep.  129;  Pullen  v.  Kinsinger,  2  Abb.  U.  S.  103;  Howell  v. 
Mills,  56  N.  Y.  226;  Sheldon  v.  Newton,  3  Ohio  St.  494;  Cromwell  v. 
Hull,  97  N.  Y.  209:  Voorhees  v.  Bank,  10  Pet.  449;  Sullivan  v.  Sullivan, 
66  N.  Y.  37;  Thomas  v.  People,  107  111.  517  —  47  Am.  Rep.  458.) 

Therefore,  jurisdiction  is  the  power  to  hear  and  determine 
the  matter  in  controversy,  and  the  acts  and  proceedings  of 
the  court  are  coram  judice  whenever  this  power  has  been 
properly  invoked. 

(Hope  v.  Blair,  105  Mo.  85  —  16  S.  W.  Rep.  595  —  24  Am.  St.  Rep. 
366;  Van  Sant  v.  Butler,  19  Neb.  351  —  27  N.  W.  Rep.  299;  Parker  v. 
Kuhn,  19  Neb.  394  —  27  N.  W.  Rep.  399;  Smiley  v.  Sampson,  1  Neb. 
56;  Franklin  v.  Kelley,  2  Neb.  79.) 

When  Proceedings  are  Coram  non  Judice. 

§  44.  Manifestly  if  the  power  to  hear  and  determine  a 
particular  case  is  wanting  in  the  tribunal  under  the  law  of 
the  land,  so  also  as  a  necessary  consequence,  jurisdiction  of 
the  case  is  wanting,  and  all  of  its  acts  and  proceedings  are 
coram  non  judice  and  absolutely  null  and  void,  vesting  no 
rights  in  any  one  and  binding  no  one. 

(Pullen  v.  Hillman,  84  Me.  129  —  24  Atl.  Rep.  795  —  30  Am.  St.  Rep. 
340;  Rodgers  v.  Evans,  8  Ga.  143  —  52  Am.  Dec.  390;  Love  joy  v.  Albee, 
33  Me.  414—54  Am.  Pec.  630;  Horner  v.  Bank.  1  Ind.  130  —  48  Am. 
Dec.    355;     Miller   v.    BrinkerhofT,    4     Denio.    118  —  47     Am.    Dee.    242; 


MEANING  OF  JURISDICTION.  87 

Power9  v.  Mitchell,  75  Me.  364;  United  States  v.  Arredondo,  6  Pet. 
691;  Merrier  v.  Chaee,  9  Allen,  240;  Elliott  v.  Piersol,  1  Tetera,  328; 
Ex  parte  Cohen,  6  Cal.  31S.) 

If  the  fact  of  the  want  of  jurisdiction  in  the  court  to 
render  the  judgment  affirmatively  appears  upon  the  face  of 
the  record,  it  is  void  and  may  be  impeached  by  the  tribunal 
in  which  it  was  rendered  of  its  own  motion,  or  by  any  party 
interested  who  may  see  fit  to  move  the  court  to  impeach  it. 
But  to  avoid  a  judgment  of  a  court  of  general  jurisdiction 
for  want  of  jurisdiction  the  jurisdictional  defects  must 
affirmatively  appear  on  the  record,  when  assailed  collaterally. 

(Ex  parte  Gray.  4S  S.  C.  566  —  26  S.  E.  Rep.  786;  Seaman  v.  Galligan, 
8  S.  Dak.  277  —  66  N.  W.  Rep.  458;  Hervey  v.  Edmunds,  G8  X.  C.  243; 
Graham  v.  Ringo,  67  Mo.  324;  In  re  College,  11  R.  I.  472;  Franks  v. 
Loekey.  45  Vt.  395;  Forman  v.  Carter,  9  Kan.  674.) 

When  Proceedings  are  Coram  Judice. 

§  45.  But  if  the  power  to  hear  and  determine  a  particular 
case  does  exist,  and  when  the  actual  jurisdiction  of  the  par- 
ticular case  or  subject-matter  thereof  is  conferred  upon  the 
court  in  the  manner  and  form  as  established  by  the  laws  in 
force  in  the  territorial  limits  wherein  the  court  is  established, 
and  when  this  has  been  properly  clone  its  proceedings  and 
judgment  are  coram  judice. 

However,  before  this  power  can  be  said  to  have  vested  in 
the  court  it  must  appear  that  the  law  has  given  the  tribunal 
capacity  to  entertain  the  complaint  made  against  the  defend- 
ant, or  the  thing  sought  to  be  charged  or  affected,  and  that 
such  complaint  has  actually  been  preferred,  and  that  the 
person  or  thing  has  been  properly  brought  before  the  court  to 
answer  the  allegations  therein  set  forth.  Therefore,  when  all 
this  appears  to  have  been  done,  jurisdiction  exists,  and  the 
right  to  hear  and  determine  is  perfected,  and  thereafter  all 
acts  and  proceedings  in  the  case  are  but  the  exercise  of  juris- 
diction, and  it  is  immaterial  whether  they  are  rightfully  or 
wrongfully  done,  correctly  or  erroneously  made,  it  is  wholly 
immaterial  as  to  the  validity,  force  or  effect  of  the  final  de- 
cree or  judgment  that  may  be  therein  rendered  when  col- 
laterally sought  to  be  impeached. 

The  court  being  invested  with  the  power  to  hear  and  de- 
termine the  rights  of  the  parties  litigant,  no  irregularities  in 


88  VOID  JUDICIAL  AND   EXECUTION   SALES. 

the  exercise  of  that  power  will  nullify  its  judgment  while 
standing  unreversed  by  an  appellate  court. 

(Barnard  v.  Barnard,  119  111.  92  —  8  N.  E.  Rep.  320;  Lumber  Co. 
V.  Allen,  52  Kan.  795  —  35  Pac.  Bep.  781;  Wood  v.  Blythe,  46  Wis. 
650  —  1  N.  W.  Bep.  341;  Heckman  v.  Adams,  50  Ohio  St.  305  —  34  N. 
E.  Bep.  155;  Bank  v.  Peters,  51  Kan.  62  —  32  Pac.  Bep.  637;  Railway- 
Co.  v.  Belle  Centre,  4S  Ohio  St.  273  —  27  N.  E.  Bep.  464;  Shippen  v. 
Kimball,  47  Kan.  173  —  27  Pac.  Bep.  813  —  Spoors  v.  Coen,  44  Ohio 
St.  497  —  9  N.  E.  Bep.  132;  Larimer  v.  Knoyle,  43  Kan.  338  —  23  Pac. 
Rep.  487;  Cooper  v.  Sunderland,  3  Iowa,  114  —  66  Am.  Dec.  52;  Paul 
v.  Smith,  82  Ky.  451;  Plume  v.  Howard,  46  N.  J.  L.  211;  Rowe  v.  Palmer, 
29  Kas.  337;  Grignon  v.  Astor,  2  How.  338;  United  States  v.  Arredondo, 
6  Pet.  691;  Rhode  Island  v.  .Massachusetts,  12  Pet.  659;  Sheldon  V. 
Newton,  3  Ohio  St.  494.) 

Three  Essentials  in  the  Right  to  Adjudicate. 

§  46.  The  right  to  adjudicate  in  a  particular  case  or  con- 
cerning the  subject-matter  in  a  given  case  comprehends  three 
essentials,  each  of  which  is  of  vital  importance  and  absolutely 
indispensable  to  the  validity  of  the  adjudication.  The  law 
must  have  conferred  upon  the  court  the  power  to  act,  the 
contending  litigants  or  the  subject-matter  or  thing  in  litiga- 
tion must  have  been  properly  brought  before  the  tribunal, 
and  the  adjudication  in  substance  and  effect  must  not  exceed 
the  latitude  of  the  issue  made.  In  this  regard  the  supreme 
court  of  Arkansas  in  a  late  case  has  said :  "  Jurisdiction  may 
be  defined  to  be  the  right  to  adjudicate  concerning  the  sub- 
ject-matter in  the  given  case.  To  constitute  this  there  are 
three  essentials.  First.  The  court  must  have  cognizance 
of  the  class  of  cases  to  which  the  one  to  be  adjudged  belongs. 
Second.  The  parties  must  be  present.  And,  Third.  The 
point  decided  must  be  in  substance  and  effect,  within  the 
issue.  A  judgment  upon  a  matter  outside  of  the  issue,  must, 
of  necessity,  be  altogether  arbitrary  and  unjust,  as  it  con- 
cludes a  point  upon  which  the  parties  have  not  been  heard  ". 

(Falls  v.  Wright.  55  Ark.  562  — IS  S.  W.  Rep.  104*  — 29  Am.  St.  Rep. 
74.) 

However,  it  has  been  held  that  a  judgment  rendered  on  a 
non-judicial  day,  as  on  a  Sunday,  is  not  merely  erroneous  for 
that  reason,  but  is  an  absolute  nullity. 

(Stylos  v.  Harrison,  99  Tenn.  12R  — 41  S.  W.  Rep.  333:  Davis  v.  Fish, 
1  G.  Greene,  406  —  48  Am.  Dec.  391:  Lampe  v.  Manning,  38  Wis.  673; 
Houghtaling  v.  Osborn,  15  Johns.  119;  Blood  v.  Bates.  31  Vt,  147; 
Chapman  v.  State.  5  Blackf.  111.) 


SOURCES  OF  JURISDICTION.  89 


SOURCES  OF    JURISDICTION. 

Common  Law  and  Equitable  Jurisdiction. 

§  47.  Jurisdiction  may  properly  be  said  to  be  divided  into 
two  grand  divisions,  namely  the  common  law  and  equitable. 
Once  these  were  kept  religiously  separate  and  distinct,  not 
only  with  respect  to  the  courts  wherein  they  were  adminis- 
tered, but  also  with  respect  to  the  mode  and  manner  of 
procedure,  as  well  as  the  remedies  to  be  administered,  they 
now  are  much  intermingled  by  constitutional  provision  and 
statutory  enactments.  The  civil  codes  established  in  the 
states  have  very  largely  influenced  and  modified,  not  only  the 
remedies  to  be  enforced,  but  also  the  manner  of  their  en- 
forcement, obliterating  much  of  the  ancient  distinction  be- 
tween these  two  departments  of  jurisdiction. 

Nevertheless  there  is  an  element  of  radical  distinction  be- 
tween common  law  rights  and  equitable  rights  and  remedies. 
Whether  proceeding  under  the  old  or  the  new  procedure,  the 
court  in  either  instance  must  be  guided  by  established  rules 
and  precedents. 

(Sell  v.  West,  125  Mo.  621  —  28  S.  W.  Rep.  969  —  46  Am.  St.  Rep. 
508.) 

Jurisdiction  Granted  by  Constitutional  and  Statutory  Provi- 
sions. 

§  48.  Courts  are  generally  invested  with  jurisdiction  by 
constitutional  and  statutory  provisions,  and  thereby  em- 
powered to  hear  and  determine  certain  classes  of  causes  aris- 
ing between  the  litigating  parties,  and  to  enforce  their  judg- 
ments thus  rendered. 

(Jones  v.  United  States,  137  U.  S.  202  —  11  Sup.  Ct.  Rep.  80; 
Withers  v.  Patterson,  27  Tex.  491  —  86  Am.  Dec.  643;  Belcher  v.  Cham- 
bers, 53  Cad.  635;  United  States  v.  Cruikshank,  92  U.  S.  564; 
Railway  Co.  v.  Rawlins,  SO  Tex.  579  —  16  S.  W.  Rep.  430; 
Springer  v.  Shavender,  118  N.  C.  33  —  23  S.  E.  Rep.  976  —  54  Am. 
St.  Rep.  708;  Hope  v.  Blair.  105  Mo.  85  — 16  S.  W.  Rep.  595  —  24  Am. 
St.  Rep.  366;  Scott  v.  McNeal,  154  U.  S.  34  —  14  Sup.  Ct.  Rep.  1108; 
Melia  v.  Simmons,  45  Wis.  334  —  30  Am.  Rep.  746;  Thomas  v.  People, 
107  111.  517  —  47  Am.  Rep.  458.) 

Manifestly  a  condition  precedent  to  the  acquisition  of  au- 
thority over  the  parties  is  jurisdiction  of  the  subject-matter, 


90  VOID  JUDICIAL  AND  EXECUTION"  SALES. 

which  is  granted  by  the  legislative  power  which  organized 
the  judicial  tribunal  itself,  and  when  thus  granted,  juris- 
diction is  invoked  so  as  to  authorize  judicial  action,  upon  the 
presentment  of  some  declaration,  petition  or  complaint, 
either  orally  or  written,  as  by  law  required.  While  juris- 
diction over  the  subject-matter  is  of  paramount  consideration 
in  the  determination  of  the  matter  in  issue  in  a  judicial  pro- 
ceeding, its  absence  invariably  resulting  in  a  judgment  un- 
conditionally void,  and  a  sale  thereunder  an  absolute  nullity, 
each  being  subject  to  collateral  impeachment  for  such  in- 
herent infirmity, 

(Towr  of  Wayne  v.  Caldwell.  1  S.  Dak.  483  —  47  N.  W.  Rep.  547  — 
36  Am.  St.  Eep.  750;  Beckett  v.  Cuennin,  15  Colo.  281  —  25  Pac.  Rep. 
167  —  22  Am.  St.  Eep.  309;  Manufacturing  Co.  v.  Beyer,  74  Wis.  210  — 
42  N.  W.  Rep.  232  —  17  Am.  St.  Rep.  131;  Sporrs  v.  Coen,  44  Ohio  St. 
497  _  9  K".  E.  Eep.  132:  Frankell  v.  Satterfield,  9  Houst.  201  —  19  Atl. 
Rep.  898;  Wall  v.  Wall,  123  Pa.  St.  545  —  16  Atl.  Rep.  598;  Callen  v. 
Ellison,   13  Ohio   St.   446  —  b2  Am.   Dec.   448.) 

yet  even  if  such  jurisdiction  over  the  subject-matter  is  vested 
in  the  court,  the  further  jurisdiction  of  the  person  or  thing 
against  which  the  judgment  in  its  effect  operates  is  an  indis- 
pensable requirement,  the  want  of  which  vitiates  both  judg- 
ment and  all  subsequent  proceedings  founded  thereon. 

(Furgeson  v.  Jones,  17  Ore.  204  —  20  Pac.  Rep.  842  —  11  Am.  St. 
Rep.  808;  Adams  v.  Cowles,  95  Mo.  501  —  8  S.  W.  Rep.  711  —  6  Am.  St. 
Rep.  74:  White  v.  Foot  Lumber  Co.,  29  W.  Ya.  3S5—  1  S.  E.  Rep.  572  — 
6  Am.  St.  Rep.  650;  Stewart  v.  Anderson,  70  Tex.  588  —  8  S.  W.  Rep. 
295;  Ex  parte  Sawyer,  124  U.  S.  200  —  8  Sup.  Ct.  Rep.  482;  Scott  v. 
Noble.  72  Pa.  St.  119  —  13  Am.  Rep.  663.) 

Over  the  Person  of  Defendant. 

§  49.  Jurisdiction  over  the  subject-matter  is  exclusively 
conferred  by  law,  while  jurisdiction  of  the  person  of  the  de- 
fendant may  be  conferred  by  consent  when  the  former  exists. 
But  if  jurisdiction  is  not  acquired  over  the  person  by  consent, 
nor  obtained  by  the  method  designated  in  the  statute  for  its 
acquisition,  the  judgment  thus  rendered  against  a  defendant 
is  coram  non  judice  and  void,  furnishing  no  pretense  of 
support  to  a  sale  thereunder.  An  appearance  for  the  special 
purpose  of  objecting  to  the  jurisdiction  of  the  court  will  not 
be  sufficient,  under  the  weight  of  authority,  to  validate  the 
proceedings. 


SOURCES  OF  JURISDICTION.  91 

(Meyer  v.  Brooks,  29  Ore.  203  —  44  Pac.  Rep.  2S1  —  54  Am.  St.  Rep. 
790;  Mining  Co.  v.  Mining  Co.,  12  Colo.  46  —  20  Pac.  Kep.  771  —  13  Am. 
St.  Rep.  204;  Landon  v.  Townshend,  112  N.  Y.  93  —  19  X.  E.  Rep.  424  — 
8  Am.  St.  Rep.  712:  Belknapp  v.  Charlton,  25  Ore.  41  —  34  Pac.  Rep. 
758;  Nelson  v.  Campbell,  1  Wash.  St.  201  —  24  Pac.  Rep.  539;  Roller 
v.  Reid.  S7  Tex.  09  —  20  S.  W.  Rep.  1060;  Green  v.  Green,  42  Kan.  654  — 
22  Pac.  Rep.  730.) 

Jurisdiction  not  being-  conferred  by  consent  the  paramount 

question  of  inquiry  is,  whether  it  can  be  acquired  by  the 
court  without  such  consent,  under  the  forms  of  procedure  in 
this  regard  provided  by  law  The  efficacy  of  judicial  pro- 
cess according  to  universally  acknowledged  principles  is  re- 
stricted to  the  territorial  limits  over  which  the  jurisdiction 
of  the  court  out  of  which  it  emanates  extends,  and  therefore, 
if  jurisdiction  is  sought  to  be  acquired  by  the  service  of  such 
process  upon  the  defendant  in  person,  it  must  be  made 
within  such  territorial  limits,  if  a  personal  judgment  is 
sought  to  be  obtained. 

Upon  principle  the  state  or  sovereignty  is  prohibited  from 
extending  its  process  beyond  the  territorial  borders  of  its  own 
geographical  confines. 

(Griffith  v.  Harvester  Co..  92  Iowa,  034  —  01  N.  W.  Rop.  243  —  :,4  Am. 
St.  Rep.  573:  Wilson  v.  Railway  Co..  108  Mo.  5S8  — 18  S.  W.  Rep.  286  — 
32  Am.  St.  Rep.  024;  Gary  v.  Aid  Association,  87  Iowa,  25  —  53  X.  W. 
Rep.  10S0;  Kelly  v.  Insurance  Co.,  82  Iowa.  137  —  47  X.  W.  Rep.  986; 
Stewart  v.  Anderson.  70  Tex.  588  — 8  S.  W.  Rep.  295:  Pennoyer  v.  Xeff. 
95  U.  S.  714;  Galpin  v.  Page.  IS  Wall.  350;  Lutz  v.  Kelly,  47  Iowa,  307; 
Schwinger   v.    Hickok,    53    X.    Y.    2S0.) 

Over  Person  of  Defendant  not  in  the  State. 

§  50.  While  a  slate  admittedly  has  jurisdiction  over  per- 
sons and  property  within  its  borders  so  as  to  subject  either 
or  both  to  its  judicial  powers,  such  jurisdiction  or  power  does 
not  extend  to  persons  or  property  not  within  the  state. 
Judicial  power  flowing  from  the  state,  it  must,  like  the  "rant 
of  legislative  power,  cease  with  the  jreotrrnphical  boundary 
of  the  state,  as  a  necessary  consequence. 

(Pe  Meli  v.  De  Meli,  120  X.  Y.  485  —  24  X.  E.  Pep.  996  —  17  Am.  St. 
Rep.  052:  Pe  T.a  Montanya  v.  Pe  La  Montanya.  112  Cal.  101  —44  Pac. 
Rep.  345  —  53  Am.  St.  Pep.  165;  Catron  v.  Railway  Co..  59  Iowa,  14^  — 
13  X.  W.  Rep.  07:  Quinn  v.  McMahon.  40  111.  App.  593  —  29  X.  P.  Rep. 
731;  State  v.  Railway  Co..  70  Iowa.  102  —  30  X.  W.  Pep.  39s :  Short 
v.  Galway,  83  Ky.  501  —  4  Am.  St.  Rep.  168;  McEwan  v.  Zimmer,  38 


92  VOID   JUDICIAL  AND  EXECUTION   SALES. 

Mich.  765  —  31  Am.  Eep.  332;  Poindexter  v.  Burwell,  82  Va.  507;  Gibson 
V.  Burgess.  82  Va.  650;  Sturgis  v.  Fay,  16  Ind.  429  —  79  Am.  Dec.  440.) 

As  has  been  before  stated,  within  its  own  territory  every 
state  or  nation  possesses  an  exclusive  jurisdiction  according 
to  a  fundamental  principle  of  international  jurisprudence 
indispensable  for  the  maintenance  of  the  distinctive  sover- 
eignty. As  between  the  states  of  the  American  Union  any- 
thing less  than  this  would  be  absolutely  inconsistent  with 
their  equality. 

(Trust  Co.  v.  Telegraph  Co.,  55  Conn.  334  —  11  Atl.  Rep.  184  —  3  Am. 
St.  Rep.  53 ;  Lindly  v.  O'Reilly,  50  N.  J.  L.  636  — 15  Atl.  Rep.  379  —  7 
Am.  St.  Rep.  802;  Wimer  v.  Wimer,  82  Va.  890  —  3  Am.  St.  Rep.  126; 
Dillard  v.  Iron  Co.,  82  Va.  734  —  1  S.  E.  Rep.  124.) 

Measure  of  Jurisdiction. 

§  51.  The  rule  is  ancient  and  unquestioned  that  in  all 
statutory  proceedings  the  measure  of  the  jurisdiction  or 
power  of  the  court  is  the  statute  itself,  and  such  power  as  is 
provided  in  the  statute  may  be  exercised,  and  such  only.  If 
this  be  transcended  the  judgment  and  subsequent  proceedings 
thereunder  are  void,  and  subject  to  successful  collateral  im- 
peachment. 

(Railway  Co.  v.  Telegraph  Co.,  112  U.  S.  306  —  5  Sup.  Ct.  Rep.  168; 
Smith  v.  Westerfield,  88  Cal.  374  —  26  Pac.  Rep.  206;  Murray  v.  Surety 
Co.,  70  Fed.  Rep.  341;  Reynolds  v.  Stockton.  140  U.  S.  254  —  11  Sup.  Ct. 
Rep.  773 ;  United  States  v.  Walker,  109  U.  S.  258  —  3  Sup.  Ct.  Rep.  277 ; 
Hatch  v.  Ferguson,  68  Fed.  Rep.  45;  Windsor  v.  McVeigh,  93  U.  S.  274.) 

Jurisdiction  of  the  Res. 

§  52.  To  acquire  jurisdiction  over  the  rrs  necessitates  an 
actual  seizure  of  the  thing  under  the  process  of  the  court 
within  the  territorial  limits  of  its  jurisdiction. 

(Cooper  v.  Reynolds,  10  Wall.  30S;  Galpin  v.  Page,  18  Wall.  350; 
Pennoyer   v.    Xeff.    95   U.    S.    714.) 

But  by  the  seizure  alone  the  court  has  not  acquired  full  au- 
thority to  pass  upon  the  question  of  forfeiture  of  the  seized 
property  absolutely.  Before  such  authority  is  complete  some 
notification  of  the  proceedings,  other  than  that  arising  from 
tho  mero  fact  of  seizure  alone,  is  essential,  as  by  monition  or 
publication  of  notice. 

(Hassal  v.  Wilcox.  130  U.  S.  493  —  9  Sup.  Ct.  Rep.  590;  Windsor  v. 
McVeigh,  93  U.  S.  279.) 


JURISDICTION    OYER    SUBJECT-MATTER.  9:5 

In  proceedings  properly  designated  as  quasi  in  rem,  such 
as  the  foreclosure  of  mortgage  and  other  liens  and  suits  to 
quiet  title  and  to  remove  a  cloud,  actual  seizure  is  not  neces- 
sary, the  property  being  broughl  before  the  court  by  the  com- 
plaint or  petition,  and  when  the  proper  statutory  notice  is 
given  to  the  absent  defendant  owner  the  jurisdiction  of  the 
court  to  pronounce  judgment  is  complete. 
No  Jurisdiction  in  Appellate  Court  if  None  in  Lower  Court. 

§  53.  If  the  court  wherein  the  action  is  originally  in- 
stituted is  without  jurisdiction  none  is  conferred  upon  the 
appellate  court  by  an  appeal  to  that  court, 

(Osgood  v.  Thurston,  23  Pick.  110;  Baker  v.  Chisholm,  3  Tex.  157.) 

unless  the  appellate  court  has  concurrent  jurisdiction  with 
the  lower  court  of  the  class  of  cases  and  the  parties  appear  in 
the  former  court  after  the  appeal  is  taken,  thus  waiving  the 
objection. 

JURISDICTION    OVER    SUBJECT-MATTER. 

How  Conferred. 

§  54.  Jurisdiction  over  the  subject-matter  is  conferred  ex- 
clusively by  the  law  itself,  and  can  not  be  acquired  by  any  act 
or  consent  of  the  litigating  parties.  The  proposition, 
founded  upon  important  considerations  of  public  policy,  is 
fundamental  and  axiomatic,  that  when  the  statute  law  or 
constitution  has  not  vested  the  tribunal  with  jurisdiction  over 
the  subject-matter  of  a  legal  controversy,  notwithstanding 
the  express  consent  and  solicitations  of  the  parties  to  confer 
jurisdiction,  and  despite  their  acquiescence  by  failure  to  urge 
objections,  the  judgment  ultimately  rendered  and  all  pro- 
ceedings had  thereunder  are  utterly  void,  and  open  to  re- 
pudiation in  a  collateral  proceeding  as  well  as  direct  attack, 
by  the  party  affected  thereby,  because  the  court  transcended 
its  authority  in  determining  the  matter  in  controversy. 

(Town  of  Wayne  v.  Caldwell.  1  S.  Dak.  483  —  47  X.  W.  Rep. 
547—36  Am.  St.  Rep.  750;  Block  v.  Henderson,  82  Ga.  23  —  8  S. 
E.  Rep.  877  —  14  Am.  St.  Rep.  13S;  Shrader  v.  Hoover.  87  Iowa. 
654  —  54  N.  W.  Rep.  463;  Telepraph  Co.  v.  Taylor,  84  Ga.  40S  — 11 
S.  E.  Rep.  396;  Railway  Co.  v.  Cihbons,  35  W.  Va,  57  —  12  S.  K. 
Rep.  1003;  Lansing  v.  Railway  Co.,  85  Iowa.  215  —  52  N.  W.  Rep.  195; 
Oreutt   v.   Hanson,   71   Iowa,    514  —  32   N.   W.   Rep.   482;    Cerro   Gordo 


94  YOID  JUDICIAL   AND  EXECUTION   SALES. 

County  v.  Wright,  59  Iowa,  485  —  13  N.  W.  Rep.  645;  Swiggert  v. 
Harber,  4  Scam.  364  —  39  Am.  Dec.  41S ;  Beverly  v.  Burke,  9  Ga.  440  — 
54  Am.  Dec.  351;  Bent  v.  Graves,  3  McCord,  280  —  15  Am.  Dec.  632; 
Roy  v.  Horsley,  6  Ore.  382- —  25  Am.  Rep.  537;  Railway  Co.  v.  Sandoval 
Co..   Ill  111.  32;   Santom  v.  Ballard,   133  Mass.  464.) 

Under  Unconstitutional  Act. 

§  55.  As  the  grant  of  jurisdiction  is  exclusively  derived 
from  competent  authority,  either  legislative  or  constitutional, 
if  the  jurisdiction  is  exercised  under  an  act  which  is  uncon- 
stitutional the  judgment  is  manifestly  an  absolute  nullity, 
and  any  sale  of  property  thereunder  utterly  void. 

(Ex  parte  Giambonini,  117  Cal.  573  —  49  Pac.  Rep.  732; 
Johnson  v.  Jones,  87  Ga.  85  — 13  S.  E.  Rep.  261 ;  In  re  Drainage 
District,  34  La.  Ann.  97;  Irvin's  Succession,  33  La.  Ann.  63;  Reed 
V.  Wright,  2  G.  Greene,  15;  Dowe  v.  Johnson,  100  U.  S.  158;  Sculley  v. 
Lowenstein,  56  Miss.  652.) 

Such  a  judgment  has  no  more  efficacy  and  such  a  sale  is 
as  void  as  if  made  under  the  proceedings  of  a  de  facto  court, 
which  manifestly  has  no  existence  and  whose  judgment  can 
be  nothing  but  a  nullity. 

(Gorman  V.  People.  17  Colo.  596  —  31  Pac.  Rep.  335  —  31  Am.  St. 
Rep.  320;  Norton  v.  Shelby.  118  U.  S.  425  —  6  Sup.  Ct.  Rep.  1121; 
Hildreth  v.  Mclntire,  1  J.  J.  Marsh.  206—  19  Am.  Dec.  61.) 

Appearance  not  a  Waiver  of  a  Lack  of  Jurisdiction. 

§  56.  Accordingly  a  lack  of  jurisdiction  of  the  subject- 
matter  is  not  waived  by  a  voluntary  appearance  in  the  suit 
because  the  defect  is  an  inherent  and  radical  one  not  obviated 
by  the  agreement  or  consent  of  the  parties.  For  this  reason 
objection  to  the  jurisdiction  over  the  subject-matter  is  always 
in  time. 

(Moore  v.  O'Barr,  87  Ga.  205  —  13  S.  E.  Rep.  464;  Bigelow  v.  Loan  & 
Trust  Co.,  164  111.  197  —  45  N.  E.  Rep.  512;  Robertson  v.  Wheeler,  162 
111.  566  —  44  N.  E.  Rep.  870;  Sanders  v.  Pierce.  68  Vt.  46S  —  35  Atl.  Rep. 
377;  Coleman's  Appeal,  75  Pa.  St.  441;  Stoughton  v.  Mott,  13  Vt.  175; 
Mannhart   v.    Sodcrstrom,    1   Binn.   13S.) 

If  the  laws  have  conferred  jurisdiction  over  the  subject- 
matter  upon  the  court,  jurisdiction  of  the  parties  may  be  ac- 
quired by  consent  or  voluntary  general  appearance  in  the 
action. 

(Edwards  v.  Smith,  16  Colo.  539  —  27  Pac.  Rep.  809;  Cofrede  v.  Judge, 
79  Mich.  332  —  44  N.  W.  Rep.  623.) 


JURISDICTION    TO    RENDEE    PERSONAL    JUDGMENT. 


95 


Conferred  Subsequent  to  Institution  of  Suit. 

§  57.  When  jurisdiction  over  the  subject-matter  is  want- 
ing at  the  time  an  action  is  instituted,  the  proceedings  are 
void  notwithstanding  the  fact  thai  jurisdiction  is  subse- 
quently conferred  upon  the  court  by  law  over  the  particular 
class  of  cases.  Such  error  is  radical  in  its  nature  and  in- 
curable. 

(Mora  v.  Kuzac,  21  La.  Ann.  754:  Edward-  v.  Marin.  28  La.  Ann.  567; 
C'arin-y  v.  Taylor.  4  Kan.  151.) 

Limitation  of  This  Jurisdiction. 

§  58.  Jurisdiction  arising  from  constitutional  provisions 
and  legislative  enactments,  as  a  necessary  corollary,  is  limited 
to  the  geographical  confines  within  which  such  constitution 
and  laws  are  operative.  Accordingly,  real  estate  situated  in 
one  state  is  not  subject  to  compulsory  disposition  under  the 
coercive  process  of  the  law  emanating  from  a  judgment  of  a 
court  of  another  state. 

(Lindley  v.  O'Reilly,  50  N.  J.  L.  636  —  15  Atl.  Rep.  370  —  7  Am.  St. 
Rep.  802;  Brown  v.  Irwin,  47  Kan.  50  —  27  Pae.  Rep.  1S4;  Wimer  v. 
Wimer,  82  Va.  890  —  3  Am.  St.  Rep.  126;  Campbell  v.  West,  86  Cal. 
197  —  24  Pae.  Rep.   1000.) 

ACQUISITION   OF   JURISDICTION    TO    RENDER 
PERSONAL  JUDGMENT. 

Jurisdiction  of  the  Person  of  Defendant  Essential. 

§  50.  While  jurisdiction  over  the  subject-matter  is  con- 
ferred by  law,  judicial  proceedings  resulting  in  a  pergonal 
judgment  are  nevertheless  void  unless  jurisdiction  of  the 
person  of  the  defendant  has  also  been  properly  acquired  be- 
fore the  rendition  of  the  judgment. 

Jurisdiction  over  the  defendant  depends  upon  his  volun- 
tary appearance  in  the  action, 

(Ferguson  v.  Oliver,  99  Mich.  161—58  N.  W.  Rep.  43  —  41  Am.  St. 
Rep.  593;  Corbitt  v.  Timmermann,  95  Mich.  5S1  —  55  N.  W.  Rep.  137  — 
35  Am.  St.  Rep.  586;  Haussman  v.  Burnham,  59  Conn.  117  —  22  Atl. 
Rep.  1065  —  21  Am.  St.  Rep.  74:  Childs  v.  Lauterman,  103  Cal.  387  — 
37  Pae.  Rep.  3S2  —  42  Am.  St.  Rep.  121;  Bank  v.  Insurance  Co.,  83 
Iowaj  491  —  50  N.  W.  Pep-  53  —  32  Am.  St.  Pep.  316:  Kenney  v.  Green, 
13  PI.  432  —  54  Am.  Dec.   439.) 

or  if  he  does  not  so  appear,  then  by  the  service  of  the  process 
of  the  law  upon  him  within  the  state  or  territorial  jnrisdic- 


96  VOID  JUDICIAL   AND   EXECUTION   SALES. 

tion  of  the  court  whereby  he  is  admonished  to  appear  and 
defend  the  cause  of  action  pending  in  the  judicial  tribunal 
out  of  which  the  process  emanated. 

(Mining  Co.  v.  Mining  Co.,  12  Colo.  4G  —  20  Pac.  Rep.  771  —  13  Am. 
St.  Rep.  204;  White  v.  Johnson,  27  Ore.  282  —  40  Pae.  Rep.  511  —  50 
Am.  St.  Rep.  726;  Hobbey  v.  Bunch,  83  Ga.  1  —  10  8.  E.  Rep.  113  — 
20  Am.  St.  Rep.  301;  Owens  v.  McClasky,  161  U.  S.  642—  16  Sup.  Ct. 
Rep.  693;  Building  Association  v.  Haden,  92  Va.  201  —  23  S.  E.  Rep. 
285;  Barnes  v.  Hays,  129  Pa.  St.  554— IS  Atl.  Rep.  559.) 

JSTotice  is  indispensable  to  the  validity  of  a  personal  judg- 
ment, and  in  the  absence  of  a  voluntary  appearance  which  in 
effect  is  a  waiver  of  process,  and  in  the  absence  of  legal  ser- 
vice of  summons  whereby  the  defendant  is  brought  into  court, 
the  judgment  is  a  mere  nullity. 

(Barrett  v.  McCallister,  33  W.  Va.  73S  — 11  S.  E.  Rep.  220;  Martin 
v.  Cobb,  77  Tex.  544  —  14  S.  W.  Rep.  162;  Cudabae  v.  Strong.  67  Miss. 
705  —  7   So.   Rep.   543.) 

Constructive  Service  only  Insufficient. 

§  60.  In  actions  in  personam  strictly  judicial  and  pro- 
ceeding according  to  the  course  of  the  common  law,  in  the 
absence  of  a  voluntary  appearance  and  without  personal  ser- 
vice of  process,  a  judgment  rendered  against  a  defendant 
upon  service  of  summons  by  publication  only  is  an  unquali- 
fied nullity,  and  a  sale  thereunder  ineffectual  for  any  pur- 
pose. 

(Hardy  v.  Beaty.  84  Tex.  562  —  19  S.  W.  Rep.  778  —  31  Am.  St.  Rep. 
80;  Renier  v.  Hurlbut,  81  Wis.  24  —  50  X.  W.  Rep.  783  —  29  Am.  St. 
Rep.  850;  Bardwell  v.  Collins,  44  Minn.  97  —  46  N.  W.  Rep.  315  —  20 
Am!' St.  Rep.  547;  St.  Claire  v.  Cox.  106  U.  S.  350  —  1  Sup.  Ct.  Rep. 
354;  Witt  v.  Meyer,  69  Wis.  595  —  35  N.  W.  Rep.  25;  Smith  v.  Crady, 
68  Wis.  215  —  31   N.  W.   Rep.   477.) 

Manifestly  upon  elementary  principles  of  jurisprudence 
such  a  judgment  is  ineffectual  in  its  operations  against  such 
non-appearing  defendant  who  resided  beyond  the  territorial 
limits  of  the  state.  It  is  wholly  immaterial  whether  the 
process  was  served  by  publication  merely  or  was  personally 
served  upon  him  beyond  the  borders  of  the  state,  the  service 
is  void  and  insufficient  to  sustain  a  personal  judgment  be- 
cause it  is  extraterritorial  in  either  case,  the  court  having 
no  power  to  command  defendant  to  appear  before  it  and  have 
his  rights  adjudicated  by  its  decision. 


JURISDICTION    TO    RENDER    PERSONAL    JUDGMENT.  97 

(Brown  v.  Campbell,  100  Cal.  635  —  35  Pac.  Rep.  433  —  38  Am.  St.- 
Rep.  314;  Goldey  v.  Morning  News,  15G  U.  S.  518  —  15  Sup.  Ct.  Rep. 
559;  Plummer  v.  Hatton,  51  Minn.  181  —  53  N.  W.  Rep.  460;  Davis 
v.  Wakelee,  156  U.  S.  680  —  15  Sup.  Ct.  Rep.  555 ;  McGavock  v.  Clarke, 
93  Va.  810  —  22  S.  E.  Rep.  864;  Sewing  Machine  Co.  v.  Radcliffe,  137 
U.  S.  287  —  11  Sup.  Ct.  Rep.  92;  Paxton  v.  Daniell,  1  Wash.  19  —  23 
Pac.  Rep.  441;  Bruschke  v.  Verein,  145  111.  433  —  34  N.  E.  Rep.  417; 
York  v.  Texas,  137  U.  S.  15  —  11  Sup.  Ct.  Rep.  9;  Wilson  v.  Seligman, 
144  U.  S.  41  —  12  Sup.  Ct.  Rep.  541.) 

How  a  Minor  Brought  in. 

§  61.  If  jurisdiction  of  a  minor  is  sought  to  be  obtained 
it  must  be  acquired  pursuant  to  the  method  provided  by  law 
in  this  regard,  as  a  voluntary  appearance  by  such  a  person  is 
unauthorized. 

(Helmes  v.  Chabourne,  45  Wis.  60;  Roy  v.  Rowe,  90  Ind.  154;  Carver 
V.  Carver,  64  Ind.  194.) 

A  non-resident  infant  cannot  be  brought  into  court  in  an 
action  to  cancel  a  contract  because  service  out  of  the  state  is 
void.  ISTor  is  the  court  authorized  to  appoint  a  guardian 
ad  litem  by  reason  of  such  service,  but  the  judgment,  ap- 
pointment and  appearance  are  all  unqualifiedly  void  for  want 
of  jurisdiction  of  the  person  of  the  infant. 

(Insurance  Co.  v.  Bangs,   103  U.   S.  435.) 

It  is  a  recognized  and  elementary  principle  the  philosophy 
of  which  is  self-evident  that  a  court  has  no  authority  to  ad- 
judicate directly  upon  a  person's  rights  when  he  is  neither 
actually,  if  a  personal  judgment  is  demanded,  or  construc- 
tively when  his  property  within  the  jurisdiction  of  the  court 
is  sought  to  be  reached,  before  the  court. 

(Gregory  v.  Stetson,  133  U.  S.  579  —  10  Sup.  Ct.  Rep.  422;  Anderson  r. 
Hawhe,  115  111.  33  —  3  N.  E.  Rep.  566;  St.  Claire  v.  Cox,  106  U.  S.  350  — 
1  Sup.  Ct.  Rep.  354;  Blanton  v.  Carrol,  86  Va.  539  —  10  S.  E.  Rep.  329; 
Elliott  v.  McCorruack,  144  Mass.  11  —  10  N.  E.  Rep.  705.) 

Complainant  in  Court  by  Virtue  of  His  Petition. 

§  62.  The  court  acquires  jurisdiction  over  the  complainant 
in  the  action  upon  his  coming  before  it  with  his  complaint 
or  petition  according  to  the  requirements  of  law  in  this  re- 
gard. By  his  pleading  he  submits  himself  to  the  jurisdiction 
of  the  court  and  thereafter  he  is  before  it  for  all  matters  in- 
cident to  the  suit. 
7 


98  VOID  JUDICIAL  AND  EXECUTION   SALES. 

And  in  a  court  of  record  a  judgment  rendered  without  a 
written  statement  of  a  cause  of  action  is  a  nullity,  as  a  judg- 
ment can  not  be  based  upon  facts  not  pleaded.  The  same 
rule  applies  in  case  the  judgment  in  its  relief  goes  beyond 
the  issues  made. 

(Kimmerle  v.  Kailway  Co.,  76  Tex.  686  —  12  S.  W.  Rep.  698.) 

Irregular  Process  Served. 

§  63.  While  a  judgment  pronounced  against  a  defendant 
who  has  neither  appeared  in  the  action  nor  has  been  served 
with  process  is  void,  yet  if  he  was  served  with  process  ir- 
regular in  form,  or  which,  though  regular  in  form,  has  been 
irregularly  served,  it  is  incumbent  upon  the  defendant  thus 
served  to  urge  his  objections  to  such  irregularity,  and  failing 
so  to  do,  the  judgment  ultimately  rendered  against  him  is 
generally  sufficient  when  collaterally  called  in  question.  In 
the  former  case  there  is  a  total  want  of  jurisdiction  but  in 
the  latter  merely  a  defect  in  invoking  it. 

(Estate  of  Newman,  75  Cal.  213  —  16  Pac.  Rep.  8S7  — 7  Am.  St.  Rep. 
146;  Lane  v.  Innes,  43  Minn.  137  —  45  N.  W.  Rep.  4;  Schobacher  v. 
Insurance  Co.,  59  Wis.  86  —  17  N.  W.  Rep.  969.) 

Process  Served  Wanting  in  Substance. 

§  64.  Therefore,  where  the  summons  actually  issued  and 
served  accomplishes  the  object  of  the  law  in  furnishing  the 
defendant  with  the  intelligence  of  the  pendency  of  the  action, 
admonishing  him  to  appear  and  defend  within  a  time  and  at 
a  place  specified,  and  that  upon  his  failure  so  to  do  judgment 
will  be  rendered  against  him  according  to  the  demands  of  the 
complaint,  it  is  sufficient  to  confer  jurisdiction,  notwithstand- 
ing the  summons  may  be  deficient  in  failing  to  state  other 
statutory  requirements.  But  on  the  contrary,  if  the  process 
is  defective  by  reason  of  a  total  omission  of  one  or  more  of 
the  essential  particulars,  it  is  manifestly  insufficient  to  confer 
jurisdiction,  and  the  judgment  is  ordinarily  a  nullity  by 
reason  thereof. 

(Pickering  v.  State,  106  Ind.  228  —  6  N.  E.  Rep.  611;  Newman  v. 
Bowers,  72  Iowa,  465  —  34  N.  W.  Rep.  212;  Kimball  v.  Castagnio,  8 
Colo.    525  —  9    Pac.    Rep.    488.) 

Defective  Service  and  Failure  of  Service. 

§  65.  There  is  a  material  distinction  between  an  attempt 
at  service  reaching  the  defendant  but  which  is  defective  in 


ACTUAL  XOTICE.  99 

the  manner  of  service  or  form  of  return,  and  where  such  at- 
tempted service  wholly  fails  to  reach  the  defendant.    A  judg- 
ment founded  upon  the  former  is  irregular  and  voidable, 
but  when  founded  upon  the  latter  it  is  absolutely  void. 
(Campbell  Co.  v.  Mader,  50  Neb.  283  —  69  X.  W.  Rep.  774.) 

ACTUAL  NOTICE. 
In  General. 

§  66.  Judgments  and  decrees  obtained  in  courts  of  record 
in  cases  wherein  the  record  of  the  cause  discloses  among 
other  steps  had  anterior  to  the  rendition  of  judgment,  the 
return  of  the  sheriff  or  other  officer  authorized  to  serve 
original  process,  and  who  served  the  writ  or  summons  in  the 
particular  action,  in  effect  that  it  was  executed  or  served  as 
by  law  required,  the  truth  of  such  return  of  service  cannot 
be  questioned  in  the  state  wherein  the  judgment  was  pro- 
nounced after  the  expiration  of  the  time  within  which  the, 
court  retains  power  over  its  own  judgments  and  decrees. 
This  inhibition  obtains  not  only  in  collateral  proceedings, 
but  also  in  a  direct  action  instituted  for  the  purpose  of  vacat- 
ing the  judgment,  except  in  cases  where  the  plaintiff,  by 
fraudulent  machinations,  procured  the  return,  when  it  may 
be  questioned  in  a  direct  proceeding  when  the  court  has  lost 
control  over  its  judgments  by  the  lapse  of  time. 

(Thomas  v.  Ireland,  88  Ky.  5S1  — 11  S.  W.  Rep.  653  —  21  Am.  St. 
Rep.  356;  Johnson  v.  Gregory,  4  Wash.  109  —  29  Pac.  Rep.  831  —  31  Am. 
St.  Rep.  907;  Thompson  v.  McCorkle,  136  Ind.  4S4  —  34  N.  E.  Rep.  813  — 
43  Am.  St.  Rep.  334;  United  States  v.  Goyle,  45  Fed.  Rep.  107;  Goddard 
v.  Harbour,  56  Kan.  744  —  44  Pac.  Rep.  1055;  Thomas  v.  Owen,  49  Pac. 
Rep.  73;  Nichols   v.  Nichols,  96  Ind.  433;  McNeill  v.  Edie,  24  Kan.  108.) 

Mere  irregularity  in  the  process  or  in  the  officer's  return 
of  process  is  insufficient  to  expose  the  judgment  to  successful 
collateral  impeachment.  As  for  instance  where  the  requisite 
seal  was  lacking  in  the  summons  served. 

(Krug  v.  Davis.  85  Ind.  312;  Boyd  v.  Fletcher,  71  Ind.  306;  State  V. 
Davis,  73   Ind.   359.) 

Record  Disclosing  Service  in  a  Particular  Manner. 

§  67.  It  is  a  general  rule  that  when  the  record  shows  that 
jurisdiction  was  sought  to  be  acquired  in  a  certain  way,  or 
that  certain  steps  were  taken  to  obtain  jurisdiction,  then 


100  VOID  JUDICIAL  AND   EXECUTION  SALES. 

there  are  no  presumptions  that  anything  else  was  done  or 
that  jurisdiction  was  obtained  in  some  other  way.  Accord- 
ingly, where  the  record  professes  to  contain  the  return  pro- 
cess, which  discloses  the  fact  that  the  wrong  person  was 
served,  or  that  the  defendant  could  not  be  found,  or  was 
improperly  served,  it  can  not  be  presumed,  the  entry  and 
finding  of  due  service  preceding  the  default  to  the  contrary 
notwithstanding,  that  there  was  some  other  and  sufficient 
service  upon  the  real  defendant. 

It  is  but  reasonable  that  where  it  appears  from  the  face  of 
the  record  that  summons  in  the  action  was  served  in  a  way 
wholly  ineffectual  in  order  to  confer  jurisdiction  that  such 
disclosure  shall  prevail  and  that  there  is  no  presumption  that 
any  other  or  valid  service  was  made. 

(Barber  v.  Morris,  37  Minn.  194  —  33  N.  W.  Rep.  559  —  5  Am.  St.  Rep. 
'836;  Hobby  v.  Bunch,  83  Ga.  1  —  10  S.  E.  Rep.  113  —  20  Am.  St.  Rep. 
301;  Adams  v.  Cowles,  95  Mo.  501  —  8  S.  W.  Rep.  711  —  6  Am.  St.  Rep. 
74;  Cheery  v.  Clayton,  110  U.  S.  708  —  4  Sup.  Ct.  Rep.  328;  Settlemeier 
V.  Sullivan,  97  U.  S.  444;  Coit  v.  Haven,  30  Conn.  190  —  79  Am.  Dec. 
244;  Cloud  v.  Pierce  City,  83  Ind.  417.) 

Leaving  Summons  at  Last  Place  of  Residence  Actual  Service. 

§  68.  If  the  statute  provides  that  summons  may  be  served 
upon  a  defendant  by  leaving  it  for  him  at  his  last  place  of 
residence,  such  service  is  actual  notice  and  sufficient  to  confer 
jurisdiction  to  support  a  personal  money  judgment,  when  all 
the  conditions  by  law  required  to  allow  it  have  been  strictly 
complied  with. 

(Laney  v.  Garbee,  105  Mo.  355  —  16  S.  W.  Rep.  831  —  24  Am.  St.  Rep. 
391;  McLane  v.  Piaggio,  24  Fla.  71  —  3  So.  Rep.  823;  Swift  v.  Meyers, 
37  Fed.  Rep.  37;  Jenkins  V.  Crofton,  9  S.  W.  Rep.  406;  Settlemeier  v. 
Sullivan,   97   U.   S.   444.) 

But  where  the  law  requires  process  to  be  personally  served, 
a  service  by  leaving  a  copy  thereof  at  the  defendant's  resi- 
dence is  tantamount  to  no  service  at  all. 

(Hobby  v.  Bunch,  83  Ga.  1  —  10  S.  E.  Rep.  113  —  20  Am.  St.  Rep. 
301.) 

Pleadings  Showing  Absence  or  Non-residence  of  Defendant. 

§  69.  The  presumptions  indulged  in  support  of  the  judg- 
ments of  superior  courts  of  general  jurisdiction  are  limited 
to  jurisdiction  over  persons  within  their  territorial  limits; 


ACTUAL  NOTICE.  101 

hence,  where  the  pleadings  affirmatively  disclose  the  fact 
that  the  defendant  is  a  non-resident  or  is  absent  from  the 
state,  this  must  be  considered  as  proof  that  he  has  not  re- 
ceived actual  notice,  nothing  appearing  to  the  contrary. 
(Galpin  v.  Page,   13  Wall.  350.) 

Notice  on  Minors. 

§  70.  According  to  the  doctrine  announced  in  some  ad- 
judications actual  notice  upon  a  minor  is  not  necessary  for 
a  valid  decree  for  the  sale  of  lands  derived  from  his  ancestor. 

(Railway  Co.  v.  Blythe,  69  Miss.  939  —  11  So.  Rep.  111  —  30  Am.  St. 
Rep.  599 ;  Morton  v.  Carroll,  68  Miss.  699  —  9  So.  Rep.  896 ;  Burrus  v. 
Burrus,  56  Miss.  92;  Stampley  v.  King,  51  Miss.  728;  Benningfield  v. 
Reed,  8  B.  Mon.  105;  Bustard  v.  Gates,  4  Dana,  429;  Smith  v.  Marshall, 
2  Atk.  70;  Thompson  v.  Jones,  8  Ves.  141.) 

Others  consider  notice  upon  the  minor  an  essential  re- 
quirement to  a  valid  decree  affecting  his  rights  in  such  lands 
upon  the  theory  that  such  proceedings  are  adversary  and 
notice  must  be  given  to  acquire  jurisdiction  of  his  person. 

(In  re  Estate  of  Hunter,  84  Iowa,  3S8  — 51  N.  W.  Rep.  20;  Moore  v. 
StaTks,  1  Ohio  St.  369 ;  Massie  v.  Donaldson,  8  Ohio,  377 ;  Roy  v.  Rowe, 
90  Ind.  54;   Allen  v.   Saylor,   14  Iowa,   435.) 

In  Indiana  it  has  been  frequently  held  that  the  fact  of 
infancy  will  not  excuse  the  necessity  of  service  of  process 
upon  infant  defendants,  and  in  order  to  confer  jurisdiction 
they  must  be  notified  the  same  as  adults. 

(Abdil  v.  Abdil.  26  Ind.  287;  Hawkins  v.  Hawkins,  28  Ind.  66;  Doe 
v.  Anderson,  5  Ind.  33;  Hough  v.  Canby,  8  Blackf.  301.) 

Elsewhere  it  has  been  held  that  a  decree  in  partition  of 
real  estate  against  minors  not  actually  brought  into  court 
by  service  of  process,  but  who  were  represented  in  the  pro- 
ceeding by  a  guardian  ad  litem  is  not  void  but  voidable  only. 

(Alston  v.  Emmerson,  83  Tex.  231  —  18  S.  W.  Rep.  566  —  29  Am.  St. 
Rep.  639;  Havens  v.  Drake,  43  Kan.  484  —  23  Pac.  Rep.  621.) 

In  Suits  against  Husband  and  Wife. 

§  71.  Under  the  old  chancery  practice  service  upon  the 
husband  was  deemed  sufficient  in  a  suit  against  himself  and 
wife  involving  all  property  except  the  wife's  separate  estate, 
or  where  the  bill  was  direct  against  her  as  a  fiduciary.  Ser- 
vice upon  the  husband  alone  was  considered  sufficient  by 


102  VOID  JUDICIAL  AND  EXECUTION   SALES. 

reason  of  the  legal  fiction  that  husband  and  wife  are  one 
person  in  law.  However,  this  rule  is  abrogated  under  the 
modern  codes  of  procedure. 

(Leitner  v.  Lewis,  119  N.  Y.  131  —  23  N.  E.  Eep.  296;  Ferguson  v. 
Smith,  2  Johns.  139;  Daniell  Chancery  Practice,  435.) 

In  Proceedings  of  Sale  by  Administrators. 

§  72.  Notice  of  the  application  for  an  order  of  sale  by  an 
administrator  for  the  sale  of  a  decedent's  lands  is  not  held 
to  be  an  essential  requisite  to  bind  the  parties  interested,  in 
those  states  where  such  proceedings  are  considered  as  being 
in  the  nature  of  proceedings  in  rem,  the  filing  of  a  proper 
petition  conferring  authority  upon  the  court  to  order  the  sale, 
where  this  is  the  rule.  Among  the  states  wherein  this  prin- 
ciple has  become  a  settled  rule  of  property  are  Alabama, 
Arkansas,  Texas,  Washington,  Louisiana,  Nebraska  and 
Iowa. 

(Lyne  v.  Sanford,  82  Tex.  58  — 19  S.  W.  Eep.  847  —  27  Am.  St.  Rep. 
852;  Apel  v.  Kelsey,  52  Ark.  341  —  12  S.  W.  Rep.  703  —  20  Am.  St.  Rep. 
183;  Cobb  v.  Garner.  105  Ala.  467  —  17  So.  Eep.  47;  Goodwin  v.  Sims, 
86  Ala.  102  —  5  So.  Rep.  5S7;  Ackerson  v.  Orchard,  7  Wash.  377  —  34 
Pac.  Rep.  1106;  Schroeder  v.  Wilcox,  39  Neb.  136  —  57  N.  W.  Rep.  1031; 
Spurgin  v.  Bowers,  82  Iowa,  187  —  47  N.  W.  Rep.  1029;  Oriol  v.  Hern- 
don,  38  La.  Ann.   759.) 

Diametrically  opposed  to  this  view  are  the  adjudications 
in  the  states  of  Kansas,  Illinois,  Wisconsin,  South  Carolina, 
Oregon,  Mississippi,  New  Hampshire,  Tennessee,  New 
York,  North  Carolina  and  Indiana,  where  the  notice  pro- 
vided to  be  given  by  the  fiduciary  of  his  application  for  an 
order  of  sale  is  an  indispensable  requirement  without  which 
jurisdiction  of  the  heirs  or  interested  parties  is  not  acquired. 
A  sale  under  an  order  procured  in  the  absence  of  notice  can 
not  affect  the  title  of  the  heirs,  for  the  proceedings  are 
considered  in  personam  in  so  far  as  they  are  adversary 
against  the  interested  parties. 

(Perry  v.  Adams,  98  N.  C.  167  —  3  S.  E.  Rep.  729  —  2  Am.  St.  Rep. 
326;  Johnson  v.  Cobb,  29  S.  C.  372  —  7  S.  E.  Rep.  601;  Railway  Co.  v. 
Cook,  43  Kan.  83  —  22  Pac.  Rep.  988;  Fell  v.  Young,  63  111.  106;  Blod- 
gett  v.  Hitt,  44  Wis.  136 ;  Fisk  v.  Kellogg.  3  Ore.  503 ;  Jenkins  v.  Young, 
35  Hun,  569;  Frazier  v.  Pankey,  1  Swan,  74;  Root  v.  McFerrin,  37  Mass. 
17  —  75  Am.  Dec.  49:  French  v.  Hoyt,  6  N.  H.  370  —  25  Am.  Dec.  464; 
Doe  v.  Brown,  8  Ind.  197  —  65  Am.  Dec.  758.) 


SERVICE  OF  PEOCESS  AND  THE  BETTJBN.  103 

SEEVICE  OF  PROCESS  AXD  THE  RETURN. 

Effect  when  Served  by  Unauthorized  Person. 

§  73.  From  the  earliest  time  in  the  history  of  our  law 
sheriffs  and  constables  are  the  specially  authorized  officers 
to  serve  and  execute  process.  Statutes  authorizing  service 
to  be  made  by  a  private  person  usually  provide  that  he  be  a 
disinterested  or  indifferent  person,  hence  indicating  that 
he  must  not  be  a  party  to  nor  interested  in  the  suit.  Ac- 
cordingly it  has  been  held  that  service  by  a  sheriff  who  is 
the  plaintiff  in  the  suit  is  invalid,  and  the  judgment  by 
default  rendered  therein  void  to  the  extent  that  the  defend- 
ant may  resist  the  enforcement  thereof  by  injunction,  in- 
dicating that  the  judgment  is  void  collaterally. 

(Knott  v.  Jarboe,  1  Met.  504.) 

So  in  Indiana  it  was  held  that  where  service  of  the  sum- 
mons was  made  by  an  unauthorized  person  no  jurisdiction 
of  the  defendant  so  served  was  thereby  acquired. 

(Kyle  v.  Kyle,  55  Ind.  387.) 

But  according  to  the  weight  of  authority  the  service  of 
original  summons  by  an  unauthorized  person  will  not  render 
the  judgment  by  default  void  when  questioned  in  a  col- 
lateral proceeding.  Thus  in  a  late  case  in  Iowa  the  court 
said  that  it  was  a  well-settled  rule  in  that  state  that  where 
a  defective  notice  or  defective  proof  of  the  service  of  a  notice 
was  adjudged  to  be  sufficient  by  the  trial  court  the  judgment 
rendered  thereon  is  not  impeachable  collaterally. 

(Rotch  v.  Humbolt  College,  89  Iowa,  480  —  56  N.  W.  Rep.  568.) 

Service  Required  to  be  Made  by  Particular  Officer. 

§   74.   Where  the   statute   requires  that  process   shall   be 
served  by  a  certain  officer,  the  provision  was  held  imperative, 
and  service  by  anyone  else  was  decided  to  be  void  under 
the  Kansas  statute  regarding  service  outside  of  the  state. 
(Kincaid  v.  Frog,  49  Kan.  766  —  31  Pac.  Rep.  704.) 

A  seemingly  unreasonable  rule  obtains  in  Kentucky  where 
it  is  held  that  service  of  summons  by  a  special  bailiff  is  valid 
only  when  he  has  been  appointed  in  writing  indorsed  by 
the  sheriff  on  the  summons  before  the  service  was  made,  in 


104  TOID  JUDICIAL  AXD  EXECUTION   SALES. 

the  absence  of  which  such  service  is  absolutely  void,  and 
not  capable  of  validation  by  amendment. 
(Thompson  v.  Moore,  91  Ky.  SO  —  15  S.  W.  Rep.  6.) 

Service  by  Party  not  Valid. 

§  75.  jSTo  person  is  qualified  to  execute  process  in  his 
favor,  this  not  being  tolerated  under  the  policy  of  the  law, 
though  it  is  generally  held  that  summons  served  by  the  party 
himself  is  merely  irregular  and  voidable,  and  objection  upon 
this  ground  is  precluded  by  the  rendition  of  judgment, 
However,  the  authorities  are  not  unanimous  on  this  propo- 
sition, some  holding  that  the  defect  is  jurisdictional. 

(Hunter  v.  Lester,  10  Abb.  Pr.  347;  Collars  v.  McLeod,  8  Ired.  221  — 
49  Am.  Dec.  376;  Hemmer  v.  Wolfer,  11  N.  E.  Eep.  885;  Snydecker  v. 
Brosse,  51  111.  357;  Lee  v.  Fox,  89  111.  226;  Filkins  v.  O'Sullivan,  79 
111.  524.) 

Service  by  Private  Person. 

§  76.  By  statutory  provision  in  many  states  original  pro- 
cess may  be  served  by  private  persons,  subject  to  certain  con- 
ditions and  restrictions,  such  as  that  they  are  not  interested 
in  the  result  of  the  suit,  are  over  twenty-one  years  of  age,  and 
the  like.  It  has  been  held  that  it  must  appear  that  they  have 
the  necessary  qualifications  or  else  the  service  is  void. 

(Johnson  v.  MaeCoy,  32  W.  Va.  552  —  9  S.  E.  Rep.  887;  Barney  v. 
Vigoreaux,  75  Cal.  376  —  17  Pac.  Rep.  433.) 

Under  a  statute  providing  that  none  but  disinterested  per- 
sons may  be  appointed  to  serve  process  issuing  out  of  a 
justice's  court,  this  was  held  mandatory  in  Michigan  and 
no  jurisdiction  is  acquired  where  the  service  was  made  by  one 
interested  as  a  party  to  the  suit. 

(Insurance  Co.  v.  Page,  61  Mich.  72  —  27  N.  W.  Rep.  859;  Rasch  v. 
Moore,  57  Mich.  54  —  23  N.  W.  Rep.  456.) 

Written  Admission  of  Service  of  Process. 

§  77.  Many  states  allow  the  written  admission  of  service 
by  the  defendant  designated  in  the  summons,  in  lieu  of  other 
service.  Where  the  defendant's  signature  thus  appears, 
though  without  attestation,  the  judgment  by  default  rendered 
upon  such  proof  of  service  is  not  subject  to  collateral  assault, 
because  the  court  must  have  passed  upon  the  sufficiency  of 
the  admission  and  the  genuineness  of  the  signature.     Such 


SEEYICE  OF  PROCESS  AND  THE  RETURN".  105 

service  is  equivalent  to  actual  service,  and  accordingly  brings 
the  defendant  within  the  jurisdiction  of  the  court,  notwith- 
standing the  informalities  of  the  summons  in  some  particu- 
lars not  going  to  the  substance  of  the  writ. 

(Stevenson  v.  Polk,  71  Iowa,  278  —  32  N.  W.  Rep.  340;  Cheney  v. 
Harding,  21  Neb.  65  —  32  N.  W.  Rep.  64;  Gray  v.  Grant,  101  N.  C.  206  — 
8  S.  E.  Rep.  99.) 

But  it  is  not  every  defendant  that  can  accept  service  in 
writing  in  this  manner ;  thus  it  has  been  held  that  an  infant 
can  not  accept  service  of  process. 

(Whitsides  v.  Barber,  24  S.  C.  373;  Winston  v.  McLendon,  43  Miss. 
254;  Ricker  v.  Vaughn,  23  S.  C.  1S7;  Finlay  v.  Robertson,  17  S.  C.  435.) 

though  the  contrary  seems  to  have  been  decided  by  the  su- 
preme court  of  North  Carolina. 

(Cates  v.  Pickett,  97  N.  C.  21  —  1  S.  E.  Rep.  763;  England  v.  Garner, 
90  N.  C.  197.) 

Personal  Service  Outside  of  the  State. 

§  78.  Personal  service  of  summons  outside  of  the  state  is 
provided  for  by  statute  in  many  states,  but  such  service  is 
in  effect  but  constructive  notice,  conferring  jurisdiction  to 
render  a  judgment  in  rem  only,  the  same  as  if  the  only 
notice  given  were  that  published  in  a  newspaper.  In  such 
case  the  res  must  have  been  brought  within  the  jurisdiction 
of  the  court  by  seizure  or  attachment  the  same  as  if  notice 
were  to  be  given  by  the  publication  of  the  warning  order. 

(McBain  v.  McBain,  77  Cal.  507  —  20  Pac.  Rep.  61;  Wilson  v.  Rail- 
way Co.,  108  Mo.  588  —  18  S.  W.  Rep.  286  —  32  Am.  St.  Rep.  624; 
Graham  v.  O'Bryan,  120  N.  C.  463  —  27  S,  E.  Rep.  122;  Crouter  v. 
Crouter,  17  N.  Y.  Supp.  758;  Wood  v.  Pond,  21  Ohio  St.  148;  Allen  v. 
Cox,  11  Ind.  383;  Brooklyn  Trust  Co.  v.  Bulmer,  49  N.  Y.  84;  Williams 
v.  Welton,  28  Ohio  St.  467.) 

Xor  will  the  acceptance  of  service  of  summons  outside 
of  the  territorial  limits  of  the  state  confer  jurisdiction  to 
render  a  personal  judgment  against  the  defendant  so  ac- 
cepting service,  as  the  acceptance  so  made  merely  supplies 
the  place  of  the  affidavit  of  service  otherwise  necessary. 

(Scott  v.  Scott,  72  Pa.  St.  115.) 

Where  service  is  made  outside  of  the  state  it  must  be  made 
on  the  defendant  in  person,  or  else  it  is  a  nullity.     It  can  not 


106  VOID  JUDICIAL  AXD  EXECUTION   SALES. 

be  left  at  his  usual  place  of  abode  with  some  person  of  suit- 
able age  and  discretion,  as  is  permissible  under  certain  cir- 
cumstances in  making  service  in  the  state. 
(Adams  v.  Heckscher,  80  Fed.  Rep.  742.) 

Officer's  Return  of  Service  Conclusive. 

§  79.  There  is  an  irreconcilable  conflict  in  the  decided 
cases  upon  the  effect  of  a  return  of  the  proper  officer  showing 
service  of  process.  The  decided  preponderance  of  authority 
supports  the  rule  that  the  return  of  the  officer  is  conclusive 
upon  the  parties  to  the  proceeding  in  case  of  collateral  attack 
upon  a  domestic  judgment,  the  conclusiveness  however  be- 
ing confined  to  such  facts  as  the  officer  must  necessarily 
certify  from  his  own  personal  knowledge,  and  not  to  such 
matters,  for  the  knowledge  of  which,  he  must  necessarily  be 
dependent  upon  others. 

(Thomas  v.  Ireland,  88  Ivy.  581  —  11  S.  W.  Eep.  653  —  21  Am.  St. 
Eep.  356;  Great  West  Mining  Co.  v.  Mining  Co.,  12  Colo.  46  —  20  Pac. 
Rep.  771  —  13  Am.  St.  Rep.  204;  Goddard  v.  Harbour,  56  Kan.  744  — 
44  Pac.  Rep.  1055;  Nichols  v.  Nichols,  96  Ind.  433;  Cavanaugh  v.  Smith, 
84  Ind.  3S0;  Forrest  v.  Railway  Co.,  47  Fed.  Rep.  1.) 

When  Return  not  Conclusive. 

§  80.  But  the  rule  of  the  conclusiveness  of  the  return  is 
not  adhered  to  in  many  of  the  adjudicated  cases  where  the 
question  turns  upon  the  fact  as  to  whether  or  not  there  was 
service  at  all  upon  the  defendant,  the  question  thus  being  a 
jurisdictional  one.  In  these  cases  the  return  may  be  im- 
peached collaterally,  there  not  being  a  defective  service  but  a 
total  absence  of  service,  and  the  return  of  the  officer  con- 
sequently is  a  falsehood. 

(Campbell  P.  P.  &  Mfg.  Co.  v.  Mader  L.  &  Co.,  50  Neb.  283  —  69 
N.  W.  Rep.  744;  Wilson  v.  Shipman.  34  Neb.  573  —  52  N.  W.  Rep.  576; 
Bank  V.  Eldridge.  2S  Conn.  556  —  73  Am.  Dec.  6S8;  Carr  v.  Bank.  16 
Wis.  50;  Owens  v.  Ranstead,  22  111.  161.) 

Defendant  Brought  into  State  by  Fraud  or  Force. 

§  81.  When  force  has  been  employed  in  bringing  the 
defendant  within  the  territorial  jurisdiction  of  the  court, 
or  where  he  is  decoyed  into  the  state  or  jurisdiction  by 
means  of  false  correspondence  or  false  and  spurious  tele- 
grams, or  by  other  fraudulent  and  deceitful  practices,  for 
the  purpose  of  serving  process  upon  him,  the  service  is  void. 


GENERAL  APPEARANCE  BY  DEFENDANT.         107 

and  the  judgment  a  nullity  for  want  of  jurisdiction,  and  will 
be  set  aside  at  the  instance  of  the  defendant. 

(Townsend  v.  Smith,  47  Wis.  623  —  32  Am.  Kep.  793 ;  Cook  v.  Brown, 
125  Mass.  503  —  28  Am.  Rep.  259;  Blair  v.  Turtle,  1  McCrary,  372  —  5 
Fed.  Rep.  394;  Peel  v.  January,  35  Ark.  331  —  37  Am.  Rep.  27;  Dunlap 
V.  Cody,  31  Iowa,  260— '17  Am.  Rep.  129;  Steele  v.  Bates,  1  Aiken, 
338  —  16  Am.  Dec.  740;  Wanzer  v.  Bright,  52  111.  41;  Hill  v.  Goodrich, 
32  Conn.  5S8;  Wood  v.  Wood,  78  Ky.  624;  Williams  v.  Reed,  29  N.  J. 
L.  385;  Steiger  v.  Bonn,  59  How.  Pr.  496.) 

The  objection  by  reason  of  such  fraud  is  waived  where  the 
defendant  appears  in  the  action  by  answer  or  other  plea  not 
going  to  the  jurisdiction. 

(Jones  v.  Jones,  108  N.  Y.  415  —  15  N.  E.  Rep.  707  —  2  Am.  St.  Rep. 
447 ;  Ferguson  v.  Oliver,  99  Mich.  161  —  58  N.  W.  Rep.  43  —  41  Am. 
St.  Rep.  593.) 

GENERAL  APPEARANCE  BY  DEFENDANT  AND 

ITS  EFFECT. 
Appearance  Defined. 

§  82.  Appearance  by  the  defendant  in  a  suit  or  action  is 
the  coming  into  court  as  a  party  thereto,  either  in  person  or 
by  attorney,  or  by  some  one  else  specially  authorized  to  enter 
or  make  such  appearance  for  him,  which  is  usually  done  by 
the  filing  of  a  pleading  in  the  case  or  some  other  similar  act 
recognizing  the  authority  of  the  judicial  tribunal  to  proceed 
in  the  action. 

(Roy  V.  Mercantile  Trust  Co.,  3  Wyo.  417  —  26  Pac.  Rep.  996;  Car- 
penter v.  Shepardson,  43  Wis.  406;  McCormick  v.  Railway  Co..  49  X. 
Y.  303;  Wasson  v.  Cone,  86  111.  46;   Slauter  v.  Hollowell,  90  Ind.  286.) 

Hence  if  a  defendant  who  has  not  been  served  with  pro- 
cess makes  a  general  appearance  in  the  action  pending  in  a 
court  having  jurisdiction  of  the  subject-matter,  by  taking 
such  a  step  therein  or  seeking  such  relief  from  the  court  as 
is  consistent  only  with  the  hypothesis  that  it  had  jurisdiction 
of  his  person,  he  thereby  submits  himself  to  the  jurisdiction 
of  the  court  without  service  of  process  and  is  bound  by  its 
action  to  the  same  extent  as  if  he  had  been  regularly  served 
with  summons  in  the  action. 

(Corbitt  v.  Timmermann,  95  Mich.  581  —  55  N.  W.  Rep.  437  —  35 
Am.  St.  Rep.  586;  Childs  v.  Lantermann,  103  Cal.  387  —  37  Pac.  Rep. 
382  —  42  Am.  St.  Rep.  121;   Railway  Co.  v.  McBride,  141  U.  S.   127  — 


108  VOID  JUDICIAL  AND  EXECUTION  SALES. 

11  Sup.  Ct.  Eep.  982 ;  Dikeman  v.  Struck.  76  Wis.  332  —  45  N.  W.  Rep. 
48;  Chaffee  v.  Postal  Telegraph  Co.,  35  S.  C.  372  —  14  S.  E.  Rep.  764; 
Frazier  v.  Douglass,  57  Kan.  S09  —  48  Pac.  Rep.  36;  Foote  v.  Richmcnd, 

42  Cal.  443;  Wood  v.  Young,  38  Iowa,  102;  Coad  v.  Coad,  41  Wis.  26.) 

Answer  Stricken  as  Insufficient. 

§  83.  By  interposing  his  answer  in  the  action  the  defend- 
ant not  served  with  process  submits  himself  to  the  juris- 
diction, and  the  fact  that  his  answer  thus  interposed  is 
stricken  out  by  the  court  as  insufficient  will  not  deprive  it  of 
jurisdiction  nor  affect  the  validity  of  the  judgment  ulti- 
mately rendered. 

(Ferguson  v.  Oliver,  99  Mich.  161  —  58  N.  W.  Rep.  43  —  41  Am.  St. 
Rep.  593;  Mason  v.  Alexander,  44  Ohio  St.  329  —  7  N.  E.  Rep.  435; 
Burdette  v.  Corgan,  26  Kan.  104.) 

General  Appearance  Waives  Defect  in  Process. 

§  84.  A  voluntary  general  appearance  on  the  part  of  the 
defendant  avoiding  the  necessity  of  service  of  process  in 
order  to  confer  jurisdiction  over  his  person,  by  a  parity  of 
reasoning,  srtch  appearance  is  an  absolute  and  unqualified 
waiver  of  all  defects  in  such  original  process  which  may 
have  been  served  upon  him  for  the  purpose  of  bringing  him 
into  court. 

(Williams  v.  Railway  Co.,  27  Minn.  85  —  6  N.  W.  Rep.  445;  Burnham 
v.  Doolittle,  14  Neb.  214  —  15  N.  W.  Rep.  606;  Allen  v.  Coates,  29  Minn. 
46  — 11  N.  W.  Rep.  132 ;  New  England  Manufacturing  Co.  v.  Starin, 
GO  Conn.  369  —  22  Atl.  Rep.  953 ;  Insurance  Co.  v.  Decker,  74  Wis.  556  — 

43  N.  W.  Rep.  500.) 

Such  an  appearance  waives  the  defects  of  a  misnomer  in 
the  summons,  or  the  defect  in  the  summons  caused  by  the 
entire  omission  of  the  name  of  a  co-defendant  not  served. 

(Savings  Bank  v.  Lovejoy.  1  N.  Dak.  211  —  46  N.  W.  Rep.  411;  School 
District  v.   Griner,   8   Kan.   224.) 

That  the  summons  was  served  by  an  unauthorized  person 
is  a  defect  waived  by  a  general  appearance ;  nor  can  he  there- 
after object  to  a  defect  in  the  return  of  process,  or  a  de- 
fective summons  because  it  is  not  sealed,  or  does  not  run  in 
the  name  of  the  state.  All  such  defects  are  cured  by  the 
defendant's  general  appearance. 

(Piatt  v.  Manning.  34  Fed.  Rep.  817;  Wilkinson  v.  Vorce,  41  Barb. 
370;  Fallon  v.  Schempf,  67  111.  472;  Thompson  v.  Bishop,  29  Tex.  154; 


GENERAL  APPEARANCE  BY  DEFENDANT. 


109 


Vance  v.  Funk,  3  111.  263;  Gilson  v.  Powers,  16  111.  355;  Topf  v.  King, 
26  Ind.  391;  Andrews  v.  Powell,  27  Ind.  303;  Brewer  v.  Sibley,  13  Met. 
175;  Lovell  v.  Sabin,  15  N.  H.  29;  McManus  v.  McDonough,  107  111. 
95.) 

The  defendant's  general  appearance  waives  the  otherwise 
fatal  defect  that  the  summons  was  served  on  the  wrong  per- 
son. 

(Railway  Co.  v.  Caldwell,  11  Colo.  545  —  19  Pac.  Rep.  542;  Flynn  v. 
Railway   Co.,   6   How.   Pr.   30S.) 

Waives  Jurisdictional  Defect  in  Issuing  Process. 

§  85.  Where  a  non-resident  defendant  appears  and  inter- 
pleads in  response  to  the  process  or  order  of  a  court  having 
no  jurisdiction  to  issue  the  process  or  make  the  order  because 
.  the  defendant  was  not  before  the  court,  the  appearance  thus 
made  is  regarded  as  a  waiver  of  the  right  to  object  to  the 
jurisdiction  of  the  court. 

(Bank  v.  Insurance  Co.,  83  Iowa,  491  —  50  N.  W.  Rep.  53  —  32  Am. 
St.  Rep.  316;  Railway  Co.  v.  Gibson,  85  Ga.  1  —  11  S.  E.  Rep.  442  —  21 
Am.  St.  Rep.  135;  Railway  Co.  v.  De  Busk,  12  Colo.  294  —  20  Pac.  Rep. 
752  —  13  Am.  St.  Rep.  221 ;  Pierce  v.  Assurance  Association,  145  Mass. 
56—  12    N.    E.    Rep.    85S.) 

Appearance  by  Infants. 

§  86.  An  infant  must  plead  or  answer  by  his  guardian, 
and  can  not  appear  by  attorney.  Hence  it  is  held  that  the 
only  way  to  acquire  jurisdiction  of  his  person  is  by  service 
of  process  upon  him  as  by  law  provided. 

(Roy  v.  Rowe,  90  Ind.  54;  Helms  v.  Chadbourne,  45  Wis.  60;  Carver 
V.  Carver,  64  Ind.  194.) 

But  it  is  also  contended  that  the  only  object  of  a  summons 
on  an  infant  was  the  answer  of  the  regular  guardian  in  case 
there  was  one,  and  if  he  should  answer  without  the  sum- 
mons having  been  served  the  minor  is  bound  by  judgment 
nevertheless. 

(Payne  v.  Masek,  114  Mo.  631  —  21  S.  W.  Rep.  751;  Smoot  v.  Boyd, 
87  Ky.   642  —  9   S.  W.  Rep.   829.) 

In  a  statutory  proceeding  against  heirs  to  sell  the  lands 
of  a  decedent  to  pay  debts,  where  such  proceedings  are  con- 
sidered as  adversary  to  the  heirs,  it  is  held  that  the  guardian 
of  an  infant  heir  can  not  waive  process  and  answer  for  the 


110  VOID  JUDICIAL  AND  EXECUTION   SALES. 

ward.  The  same  reasoning  would  apply  to  a  guardian  ad 
litem,  jurisdiction  to  appoint  whom  resting  upon  service  on 
the  infant  in  the  manner  provided  by  law. 

(Potter  V.  Ogden,  136  N.  Y.  3S4  — 33  N.  E.  Rep.  228;  Crouter  v. 
Crouter.  133  N.  Y.  55  —  30  N.  E.  Rep.  726;  Ingersoll  v.  Mongani,  84  N. 
Y.  622;  Doe  v.  Bowen,  S  Ind  197.) 

EFFECT  OF  SPECIAL  APPEAKANCE. 

In  Cases  where  Statute  does  not  Prohibit  it. 

§  87.  Where  there  is  no  express  statute  prohibiting  it,  a 
special  appearance  may  be  entered  for  the  purpose  of  pre- 
senting the  question  as  to  whether  or  not  the  court  has  ac- 
quired jurisdiction  by  the  process  that  has  been  served. 
Therefore,  a  special  appearance  must  always  be  made  upon 
jurisdictional  grounds  exclusively,  for  if  made  on  any  other 
ground  it  is  a  general  appearance  which  of  itself  confers 
jurisdiction. 

(Meyer  v.  Brooks,  29  Ore.  203  —  44  Pac.  Rep.  2S1  —  54  Am.  St.  Rep. 
790;  Green  v.  Green,  42  Kan.  654  —  22  Pac.  Rep.  730;  Nelson  v.  Camp- 
bell, 1  Wash.  261  —  24  Pac.  Rep.  539;  Roy  v.  Mercantile  Trust  Co.,  3 
Wyo.  417  —  26  Pac.  Rep.  996;  Railway  Co.  v.  Superior  Court,  59  Cal. 
471;   Grantier  v.  Rosecrance,  27  Wis.  491.) 

Statutory  Rule  in  Some  States. 

§  88.  In  some  states,  under  express  provision  of  statute, 
when  a  defendant  appears  to  object  to  the  jurisdiction  of  the 
court  he  is  thereafter  precluded  from  objecting  to  the  suffi- 
ciency of  the  service  of  notice  upon  him. 

(Insurance  Co.  v.  Hanna,  81  Tex.  487  —  17  S.  W.  Rep.  35;  Robb  v. 
Rogers,  67  Tex.  335  —  3  S.  W.  Rep.  303;  Railway  Co.,  v.  Morris,  68 
Tex.  49  —  3  S.  W.  Rep.  457;   Church  v.   Crossman    49  Iowa,   444.) 

Application  to  Remove  from  State  to  Federal  Court. 

§  89.  The  filing  of  a  petition  for  the  removal  of  a  cause 
from  a  state  to  a  federal  court  constitutes  but  a  special  ap- 
pearance and  the  right  to  urge  objections  to  the  service  of 
summons  is  not  thereby  waived. 

(Railway  Co.  v.  Brow.  164  U.  S.  271  —17  Sup.  Ct.  Rep.  126;  Hawkins 
v.  Pierce,  79  Fed.  Rep.  452;  Ahlhauser  v.  Butler,  50  Fed.  Rep.  705.) 


UNAUTHORIZED    APPEARANCE    BY    ATTORNEY.  Ill 


UNAUTHORIZED  APPEARANCE  BY  ATTORNEY. 

Exposes  Judgment  to  Collateral  Attack. 

§  90.  There  is  a  conflict  in  the  adjudicated  cases  upon  the 
question  as  to  whether  or  not  a  judgment  is  subject  to  col- 
lateral impeachment  upon  the  allegation  that  the  attorney 
who  entered  a  general  appearance  for  the  defendant  was  not 
authorized  to  make  the  same,  and  that  the  pleading  or 
instrument  which  purports  to  be  his  appearance  in  the  case 
was  neither  signed  nor  authorized  by  him.  The  effect  of 
such  unauthorized  appearance  depends  upon  two  questions, 
the  residence  of  the  defendant  and  the  nature  of  the  court, 
whether  of  general  or  limited  and  inferior  jurisdiction. 

One  line  of  cases  maintains  the  doctrine  that  a  judgment 
rendered  upon  an  unauthorized  appearance  of  an  attorney, 
where  the  defendant  had  no  notice  of  the  pendency  of  the 
suit,  is  an  absolute  nullity  for  jurisdictional  infirmity,  and 
an  innocent  purchaser  thereunder  is  not  protected  in  this 
title. 

(Stocking  v.  Hanson,  35  Minn.  207  —  2S  N.  W.  Rep.  507;  Anderson 
v.  Hawhe,  115  111.  33  —  3  N.  E.  Rep.  566;  Reynolds  v.  Fleming,  30  Kan. 
106  —  1  Pac.  Rep.  61;  McDowell  v.  Gregory,  14  Neb.  33  —  14  N.  W.  Rep. 
899;  Williams  v.  Neth,  4  Dak.  360  —  31  N.  W.  Rep.  630;  Bank  v.  Brooks, 
23  Fed.  Rep.  21.) 

The  same  rule  is  applied  where  a  defendant  is  out  of  the 
state  or  a  non-resident  and  has  no  notice  of  the  pendency  of 
the  suit  against  him,  in  which  case  he  is  in  no  way  legally 
affected  by  an  appearance  for  him  by  an  attorney,  when  made 
without  his  knowledge  or  authority. 

(Vilas  v.  Railway  Co.,  123  N.  Y.  440  —  25  N.  E.  Rep.  941  —  20  Am. 
St.  Rep.  771;  McNamara  v.  Carr,  84  Me.  290  —  24  Atl.  Rep.  856;  Cleve- 
land v.  Hopkins,  55  Wis.  3S7  — 13  N.  W.  Rep.  225;  Denton  v.  Noyes, 
6  Johns.   29S  — 5  Am.  Dec.   237.) 

Rule  of  Collateral  Impeachment  Denied. 

§  91.  Pursuant  to  a  decided  preponderance  of  authority 
however  the  presumption  that  the  appearance  was  author- 
ized is  conclusive  in  case  of  a  collateral  assault  upon  the 
judgment  upon  this  ground,  though  the  right  of  the  defend- 
ant to  be  relieved  from  the  consequences  of  a  judgment  thus 
rendered  against  him  is  recognized,  but  not  that  such  judg- 


112  VOID  JUDICIAL  AND  EXECUTION  SALES. 

ment  is  so  unqualifiedly  void  as  to  be  subject  to  collateral  im- 
peachment. These  adjudications  it  seems  are  based  upon 
principle  and  reason. 

(Corbitt  v.  Timmermann,  95  Mich.  5S1  —  55  N.  W.  Rep.  437  —  35  Am. 
St.  Rep.  5S6;  Great  West  Mining  Co.  v.  Mining  Co.,  12  Colo.  46  —  20 
Pac.  Rep.  771  —  13  Am.  St.  Rep.  204:  Bank  v.  Dry  Goods  Co.,  45  Kan. 
510  —  26  Pac.  Rep.  56;  Wheeler  v.  Cox,  56  Iowa,  36  — S  N.  W.  Rep. 
C58 ;  Reynolds  v.  Fleming,  30  Kan.  106  —  1  Pac.  Rep.  61 ;  Ferguson  v. 
Crawford,  70  N.  Y.  253  —  26  Am.  Rep.  589.) 

JURISDICTION  TO  BENDER  JUDGMENT  IN  REM. 

Seizure  and  Notice. 

§  92.  The  manner  or  means  of  acquiring  jurisdiction  con- 
stitutes the  principal  and  important  distinction  between  ac- 
tions in  personam  and  proceedings  in  rem.  In  the  former 
it  is  sought  to  recover  a  personal  judgment  against  the  de- 
fendant, personal  or  actual  service  of  notice  is  indispensable 
to  confer  jurisdiction,  while  in  the  latter  case  there  is  no  such 
requirement,  the  seizure  of  the  property  confers  jurisdiction 
and  notice  may  be  given  constructively  by  publication 
thereof. 

The  theory  is  advanced  by  some  authorities  that  the  seiz- 
ure of  the  property  gives  the  court  complete  jurisdiction  in 
attachment  proceedings  and  notice  is  a  mere  matter  of 
courtesy,  and  consequently  the  failure  to  give  the  statutory 
notice  to  the  defendant  is  nothing  more  than  an  error  which 
does  not  amount  to  a  jurisdictional  infirmity  nor  make  the 
proceedings  void. 

(Paine  v.  Moreland,  15  Ohio,  435  —  45  Am.  Dec.  585;  Needham  v. 
Wilson,  47  Fed.  Rep.  97;  McDonald  v.  Simcox,  98  Pa.  St.  619;  Cooper 
v.  Reynolds,  10  Wall.  308;  Craig  v.  Fraser,  73  Ga.  246;  Johnson  v.  Gage, 
57  Mo.  160;  Freeman  v.  Thompson,  53  Mo.  183.) 

A  diametrically  opposite  rule,  more  consonant  with  reason 
and  sound  on  principle,  is  promulgated  elsewhere,  holding 
that  jurisdiction  to  pronounce  judgment  of  condemnation  is 
not  complete  until  the  notice  has  been  given  as  by  law 
provided. 

(Seger  v.  Muskegon  Co.,  81  Mich.  344  —  45  N.  W.  Rep.  982;  Cummings 
v.  Tabor,  61  Wis.  185  —  21  N.  W.  Rep.  72 ;  Beaupre  v.  Brigham,  79  Wis. 
426  —  48   N.   W.   Rep.    596;    Stewart  v.   Anderson,    70   Tex.   588  —  8    S. 


JURISDICTION  TO  RENDER  JUDGMENT  IN   REM.  113 

W  Rep.  295;  Wescott  V.  Archer,  12  Neb.  345  —  11  X.  W.  Rep.  577; 
Barber  v.  Morris,  37  Minn.  194  —  33  N.  W.  Rep.  559;  Woolridge  v.  Mon-- 
teuse,  27  La.  Ann.  79;  Clark  v.  Bryan,  1G  Md.  171;  Edwards  v.  Toomer, 
14   S.   &  M.   75;   Ingle  v.   Curry,    1   Heisk.   26.) 

Sales  by  Guardians  of  Ward's  Lands, 

§  93.  Upon  the  proposition  that  a  guardian  represents  his 
ward,  an  order  to  sell  the  ward's  lands,  obtained  either  with- 
out or  upon  insufficient  notice,  is  now  void,  because  the  pro- 
ceedings of  sale  are  not  considered  adversary  to  the  ward. 

(Scarf  v.  Aldricb,  97  Cal.  360  —  32  Pac.  Rep.  324  —  33  Am.  St.  Rep. 
190;  Weld  V.  Johnson  Mfg.  Co.,  84  Wis.  537  —  54  N.  W.  Rep.  335; 
Meyers  v.  McGavock,  39  Neb.  S43  —  58  N.  W.  Rep.  522 ;  Thaw  v.  Ritchie, 
136  U.  S.  519  —  10  Sup.  Ct.  Rep.  1037;  Mohr  v.  Porter,  51  Wis.  487  — 
8  N.  W.  Rep.  364;  Mohr  v.  Manierre,  101  U.  S.  417.) 

But  in  a  recent  case  in  Iowa  it  is  contended  that  such 
proceedings  are  adversary,  and  hence  the  notice  is  essential. 
The  current  of  authority  is  in  favor  of  the  former  ruling. 

(Tn  re  Estate  v.  Hunter,  84  Iowa,  38S  — 51  N.  W.  Rep.  20.) 

Sale  of  Perishable  Property  Pendente  lite. 

§  94.  The  sale  of  perishable  property  under  the  order  of 
the  court  pendente  lite  is  a  proceeding  purely  in  rem,  and  the 
purchaser  of  the  same  obtains  a  good  title  irrespective  of  the 
nature  of  the  writ  upon  which  the  sale  is  made  and  re- 
gardless of  the  question  as  to  who  owned  the  same,  or  that 
there  was  no  notice  given. 

(Young  v.  Keeler,  94  Mo.  581  —  7  S.  W.  Rep.  293  —  4  Am.  St.  Rep. 
405;  State  v.  Hadlock,  52  Mo.  App.  297;  Griffith  v.  Fowler,  18  Vt.  390; 
Bullard  v.  Woods,  43  Mo.  App.  494.) 

Only  the  Property  Actually  Before  the  Court  Affected. 

§  95.  Personal  service  outside  of  the  state,  or  constructive 
service  by  publication  of  the  notice,  are  available  only  in  the 
acquisition  of  jurisdiction  for  the  rendition  of  a  judgment 
in  rem  against  the  property  of  the  defendant  within  the 
jurisdiction  of  the  court,  previously  subjected  by  levy  or  seiz- 
ure under  some  appropriate  writ  or  process  of  the  court 
whereby  the  property  sought  to  be  condemned  to  the  satis- 
faction'of  the  judgment  is  taken  into  custody.  And  such 
service  is  also  sufficient  for  the  enforcement  of  some  specific 
contract  lien  existing  upon  the  specific  property  sought  to  be 


114  VOID  JUDICIAL  AND  EXECUTION   SALES. 

appropriated,  in  which  case  ordinarily  no  seizure  is  required 
to  vest  jurisdiction. 

The  right  to  pronounce  such  judgment  in  rem  is  conceded 
upon  the  theory  that  the  courts  of  every  nation,  as  a  matter 
of  necessity  and  expediency,  have  jurisdiction  over  the  prop- 
erty within  their  territorial  limits,  regardless  of  the  question 
of  ownership  thereof.  To  render  a  valid  judgment  in  rem 
there  must  be  both  seizure  and  notice  according  to  the  decided 
preponderance  of  judicial  authority. 

(Real  Estate  Co.  v.  Hendrix,  28  Ore.  485  —  42  Pac.  Rep.  514  —  52  Am. 
St.  Rep.  800;  Wilson  v.  Railway  Co.,  108  Mo.  5SS  —  IS  S.  W.  Rep.  286  — 
32  Am.  St.  Rep.  624;  Carr  v.  Coal  Co.,  96  Mo.  149  —  8  S.  W.  Rep.  907  — 
9  Am.  St.  Rep.  328;  Waldron  v.  Railway  Co.,  1  Dak.  351  —  46  N.  W. 
Rep.  456;  Hassall  v.  Wilcox,  130  U.  S.  493  —  9  Sup.  Ct.  Rep.  590; 
Stewart  v.  Anderson,  70  Tex.  588  —  8  S.  W.  Rep.  295;  Cross  v.  Arm- 
sti-ong,  44  Ohio  St.  613  —  10  1ST.  E.  Rep.  160 ;  Brigham  v.  Fayerweather, 
140  Mass.  411  —  5  N.  E.  Rep.  265;  Freeman  v.  Alderson,  119  U.  S.  185  — 
7  Sup.  Ct.  Rep.  165;  Windsor  v.  McVeigh,  93  U.  S.  274;  Lutz  v.  Kelly, 
47  Iowa,  307.) 

As  actual  seizure  or  levy  upon  the  property  is  absolutely 
indispensable  to  confer  jurisdiction  in  proceedings  in  rem, 
as  a  necessary  corollary,  the  judgment  of  condemnation  is 
exclusively  confined  to  the  particular  property  seized,  and 
has  no  effect  whatever  upon  any  other  property  owned  by  the 
defendant  and  which  may  be  located  within  the  territorial 
jurisdiction  of  the  court,  but  which  was  not  seized  and  hence 
was  not  before  the  court  to  be  adjudicated  upon. 

(Griffith  v.  Harvester  Co.,  92  Iowa,  634  —  61  N.  W.  Rep.  243  —  54 
Am.  St.  Rep.  573 ;  Brown  v.  Campbell,  100  Cal.  635  —  35  Pac.  Rep.  433  — 
38  Am.  St.  Rep.  314;  Blanc  v.  Mining  Co.,  95  Cal.  524  —  30  Pac.  Rep. 
765  —  29  Am.  St.  Rep.  149;  Freeman  v.  Alderson,  119  U.  S.  185  —  7 
Sup.  Ct.  Rep.  165;  Bank  v.  Parent,  334  N.  Y.  527  —  31  N.  E.  Rep.  976; 
McKinney  v.  Collins,  88  N.  Y.  216;  Pennoyer  v.  Neff,  95  U.  S.  714.) 

Accordingly,  seizure  being  essential,  custody  and  control 
over  the  property  must  be  continuous,  for  if  interrupted, 
jurisdiction  will  manifestly  cease  and  the  decree  thereafter 
rendered  and  the  sale  thereunder  must  be  void  beyond 
question. 

Judgment  must  be  Rendered  on  Cause  of  Action  Stated. 

§  96.  The  cause  of  action  upon  which  an  attachment  was 
sued  out  must  be  sustained,  for  the  plaintiff  cannot  seize  the 


JURISDICTION  TO   RENDER  JUDGMENT   IN   REM.  115 

property  of  a  non-resident,  notify  him  constructively,  and 
sell  the  property  upon  a  judgment  recovered  upon  a  cause 
of  action  other  than  the  one  upon  which  he  procured  the  at- 
tachment. Xo  amendment  so  as  to  include  another  cause  of 
action  can  be  permitted.  The  proposition  is  elementary  that 
no  new  cause  of  action  can  be  added  without  the  publication 
of  a  new  notice. 

(Mudge  v.  Steinhart,  7S  Cal.  34  —  20  Pac.  Rep.  147  —  12  Am.  St.  Rep. 
17.) 

Foreclosure  of  Mortgage  and  Other  Liens. 

§  97.  Actions  for  the  foreclosure  of  mortgages,  mechanic?' 
and  other  liens  against  the  property  of  non-residents  upon 
constructive  service  of  process  are  properly  proceedings  in 
rem  although  frequently  designated  as  proceedings  quasi  in 
rem,  which  latter  designation  is  perhaps  correct  when  the 
defendant  receives  personal  service  within  the  state,  but 
when  constructively  served  the  remedy  is  strictly  confined  to 
the  property  covered  by  the  lien,  and  the  judgment  operates 
upon  nothing  else.  Such  suit  must  be  instituted  in  the 
jurisdiction  wherein  the  property  charged  is  located.  Actual 
seizure  as  in  attachment  is  unnecessary  to  confer  jurisdiction, 
but  the  mere  institution  of  the  suit  to  enforce  the  lien  by  a 
condemnation  of  the  property  to  pay  the  claim  is  equivalent 
to  a  seizure,  and  the  jurisdiction  is  complete  by  publication 
of  the  statutory  notice. 

(Bernhart  v.  Brown,  118  N.  C.  700  —  24  S.  E.  Rep.  527;  Heidritter  v. 
Oil  Co.,  112  U.  S.  294  —  5  Sup.  Ct.  Rep.  135.) 

Decree  Assigning  Residue  of  Estate  of  a  Decedent. 

§  98.  In  Minnesota  it  is  held  that  the  decree  of  a  court 
of  probate  having  jurisdiction,  assigning  the  residue  of  the 
estate  of  a  decedent  is  in  the  nature  of  a  judgment  in  rem, 
and  is  conclusive  upon  everyone  interested  whether  then 
in  being  or  not,  and  binds  the  whole  world. 

(Ladd  v.  Weiskoff,  62  Minn.  29  —  64  N.  W.  Rep.  99;  Greenwood 
v.  Murray,  26  Minn.  259  —  2  X.  W.  Rep.  945.) 

Attachment  of  Lands  in  Justice's  Court. 

§  99.  "Where  the  statute  does  not  authorize  the  levy  of  an 
attachment  issued  from  a  justice's  court  on  lands  and  tene- 
ments, such  a  levy  is  unauthorized,  and  when  made  and  the 


116  YOID  JUDICIAL  AXD   EXECUTION   SALES. 

defendant  was  not  personally  served  with  summons  and  did 
not  appear,  the  justice  acquired  no  jurisdiction  of  the  defend- 
ant nor  of  the  res  and  a  sale  of  the  attached  property  must 
necessarily  be  absolutely  void. 

(McGehee  v.   Wilkins,   31  Fla.  83  —  12   So.   Rep.   228.) 

JURISDICTION  AS  DEPENDENT  ON  AMOUNT  IN 
CONTROVERSY. 

Amount  in  Excess  Renders  Judgment  void. 

§  100.  Statutory  or  constitutional  limitations  are  some- 
times provided  whereby  the  jurisdiction  of  courts,  usually  of 
inferior  jurisdiction,  is  restricted  to  a  prescribed  pecuniary 
limit.  Pursuant  to  a  decided  preponderance  of  authority, 
where  such  limitation  is  imposed,  the  authority  of  the  court 
to  entertain  a  suit  is  restricted  to  such  cases  wherein  the 
amount  demanded  is  within  the  pecuniary  limit  thus  fixed. 
Accordingly,  where  the  demand  for  judgment  is  simply  and 
solely  for  the  recovery  of  money,  in  a  suit  at  common  law, 
the  fact  that  the  amount  demanded  exceeds  the  highest  juris- 
dictional limit  of  the  court  to  render  judgment,  as  limited 
either  by  constitutional  provision  or  statutory  enactment,  a 
judgment  so  rendered  is  wholly  void,  because  the  infirmity 
is  a  jurisdictional  one  affirmatively  appearing  upon  the  face 
of  the  record.  Manifestly,  a  sale  of  property  under  such 
judgment  must  also  be  a  nullity. 

(Fix  v.  Sissung,  83  Mich.  561  —  47  X.  W.  Rep.  340  —  21  Am.  St.  Rep. 
616;  McFadden  v.  Whitney,  51  N.  J.  L.  391  —  18  Atl.  Rep.  62;  Beach 
V.  Atkinson,  S7  Ga.  2SS  — 13  S.  E.  Rep.  591;  Bishop  v.  Freeman.  42 
Mich.  533  —  4  X.  W.  Rep  290;  Almand  v.  Almand,  95  Ga.  204  —  22  S. 
E.  Rep.  213;  Ashworth  v.  Harper,  95  Ga.  GG0— 22  S.  E.  Rep.  (570;  Bnnch 
v.  Spotts.  57  Ark.  257  —  21  S.  W.  Rep.  437;  Wilson  v.  Sparkman.  17 
Fla.  871  —  35  Am.  Rep.  110;  Walker  v.  Wynne,  3  Yerg.  61;  Covey  v. 
Noggle,  13  Barb.  330;  Hanna  v.  Morrow,  43  Ark.  307:  Ferlett  v.  Engler, 
8  Cal.  76;  Ladd  v.  Kimball,  12  Gray.  139;  Jones  v.  Jones,  3  Dev.  !.. 
Phillip's  Appeal,   34  Pa.   St.   4S9;   Bank  v.   Pearson,   14  Gray,    521.) 

No  Jurisdiction  on  Appeal  when  None  Below. 

§  101.  If  there  is  a  want  of  jurisdiction  in  the  original 
court  because  of  an  excessive  amount  in  controversy,  juris- 
diction can  not  be  conferred  upon  the  appellate  court  by  ap- 
peal, notwithstanding  it  might  have  taken  original  cognizance 


CONSTRUCTIVE  SERVICE  OE  PROCESS  OR  NOTK  E.      117 

of  the  case,  and  the  judgment  there  rendered  on  appeal  is 
void.  The  jurisdiction  of  the  appellate  court  depending 
upon  the  jurisdiction  of  the  lower  court,  a  sale  under  such 
judgment  is  without  validity. 

(Berroth  v.  McElvain,  41  Kan.  269  —  20  Pac.  Rep.  S50;  Appeal  of 
Royston,  53  Wis.  612  —  11  X.  W.  Rep.  36;  Nace  v.  State.  117  Ind.  114  — 
19  XT.  E.  Rep.  729;  Horan  v.  Wahrberger,  9  Tex.  313  —  58  Am.  Dec.  145; 
People  v.  Skinner.  13  111.  287  —  54  Am.  Dec.  432;  Levy  v.  Shunnan,  6 
Ark.  182  —  42  Am.  Dee.  690;  Sturgeon  v.  day,  96  Ind.  166;  Stringham 
V.  Board,  24  Wis.  594:  Mays  v.  Dooley,   59  Ind.  287.) 

Amount  Below  Legal  Minimum. 

§  102.  So  where  by  statute  there  is  fixed  a  minimum  limit 
of  amount  of  which  courts  have  jurisdiction,  a  judgment 
rendered  in  contravention  of  such  provision  has  been  held 
void  upon  jurisdictional  grounds. 

(Rice  v.  Calhoun,  12  So.  Rep.  707;  Raymond  v.  Hinkon,  11  Mich.  113; 
Smith  v.  Knowlton.  11  N.  H.  191;  Investment  Co.  v.  Ray,  69  Fed.  Rep. 
657;   Moore  v.  Edgefield,   32  Fed.   Rep.   498.) 

CONSTRUCTIVE  SERVICE  OF  PROCESS  OR 

NOTICE. 

Constructive  Service  of  Notice  Defined. 

§  103.  By  constructive  notice,  or  notice  by  constructive 
service  of  process,  is  generally  understood  to  be  some  such 
notice,  or  service  of  such  notice  as  may  or  may  not  come  to 
the  actual  knowledge  of  a  party,  as  contradistinguished  from 
actual  personal  notice.  Constructive  notice  further  includes 
actual  personal  notice  made,  when  by  statute  permissible, 
outside  of  the  state  or  territorial  jurisdiction  of  the  court. 

(Wilson  v.  Railway  Co.,  108  Mo.  588  —  18  S.  W.  Rep.  286  —  32  Am.  St. 
Rep.  624;  Wood  v.  Pond.  21  Ohio  St.  148;  Trust  Co.  v.  Bullen,  49  N.  Y. 
84;  Williams  v.  Welton,  2S  Ohio  St.  467;  Crouter  v.  Crouter,  17  N.  Y. 
Snpp.  75S;  Allen  v.  Cox,  11  Ind.  3S3.) 

Not  Available  in  Purely  Personal  Actions. 

§  104.  Pursuant  to  a  universally  recognized  principle  a 
purely  personal  action  can  not  be  maintained  where  the 
jurisdiction  of  the  person  of  defendant  is  dependent  solely 
upon  constructive  notice.  Tin's  rule  obtains  even  in  case  a 
personal  judgment  is  pronounced  against  a  defendant  who 
resides  within  the  borders  of  the  state  where  the  action  is 


118  VOID  JUDICIAL  AND  EXECUTION   SALES. 

pending  or  judgment  rendered,  and  who  is  served  by  pub- 
lished process  only. 

(Blumberg  v.  Birch,  99  Cal.  416  —  34  Pac.  Rep.  102  —  37  Am.  St.  Eep. 
67;  Bardwell  v.  Collins,  44  Minn.  97  —  46  N.  \V.  Eep.  313  —  20  Am.  St. 
Rep.  547;  Merrill  v.  Beckwith,  163  Mass.  503  —  40  N.  E.  Rep.  S55; 
Farmers'  Bank  v.  Bank,  88  Tenn.  279  —  12  S.  W.  Rep.  545;  Winl'ree  v. 
Bagley.  102  N.  C.  515  —  9  S.  E.  Rep.  19S;  Eliot  v.  McCormick,  144  Mass. 
10  —  10  N.  E.  Rep.  705;  Quarle  v.  Abbett,  102  Ind.  233  —  52  Am.  Rep. 
662.) 

On  Resident  Defendants. 

§  105.  Is  constructive  service  available  to  obtain  jurisdic- 
tion of  an  alleged  absent  defendant  on  the  ground  that  he  is 
a  non-resident,  when  in  fact  he  is  a  resident?  Or  can  a 
resident  defendant,  who  can  be  found  within  the  state  and 
can  be  personally  served  with  process  therein,  be  served  by 
publication  and  jurisdiction  thus  obtained?  And  where  a 
judgment  is  thus  rendered  on  such  service,  can  it  be  assailed  in 
a  collateral  proceeding  upon  the  ground  that  there  was  a  want 
of  jurisdiction  because  the  defendant  was  entitled  to  be  per- 
sonally served  ?  Applying  the  rule  that  collateral  impeach- 
ment of  a  judgment  is  not  available  save  in  cases  where  a 
want  of  jurisdiction  is  apparent  upon  the  face  of  the  record, 
we  apprehend  that  collateral  attack  can  not  ordinarily  be 
successfully  invoked  in  such  case. 

Thus  it  has  been  held  in  Minnesota  that  a  law  providing 
for  service  by  publication  on  a  resident  defendant  who  can 
be  found  and  served  within  the  state,  in  proceedings  in 
mortage  foreclosure,  is  unconstitutional  and  void,  and  such 
service  accordingly  not  due  process  of  law  within  the  mean- 
ing of  the  federal  constitutional  inhibition.  Hence  a  title 
founded  upon  a  judgment  against  a  resident  upon  construc- 
tive notice,  who  at  the  time  was  within  the  state  and  could 
have  been  served,  is  a  nullity. 

(Bardwell  v.  Collins,  44  Minn.  97  —  46  N.  W.  Rep.  315  —  20  Am.  St. 
Rep.  547.) 

And  being  unconstitutional  and  void  as  to  resident  defend- 
ants, it  is  also  void  as  to  non-residents,  if  it  makes  no  dis- 
tinction between  them. 

(Smith  v.  Hurd,  50  Minn.  503  —  52  N.  W.  Rep.  922  —  36  Am.  St.  Rep. 
661.) 


CONSTRUCTIVE  SERVICE  OF  PROCESS  OK  NOTICE.  119 

But  service  by  publication  against  a  resident  upon  an  affi- 
davit alleging  that  lie  is  a  non-resident,  will  nut  make  the 
judgment  of  a  court  of  record  void  collaterally,  according 
to  the  adjudications  of  Virginia,  Ohio,  Kansas,  Missouri, 
Indiana  and  Tennessee,  though  such  proceedings  are  never- 
theless considered  voidable. 

(Lawson  v.  Moorman,  85  Va.  880  —  9  S.  E.  Pop.  150;  Eailway  Co. 
v.  Belle  Centre,  48  Ohio  St.  273  —  27  N.  E.  Rep.  464;  Payne  v.  Lott, 
90  Mo.  676  —  3  S.  W.  Rep.  402;  Larimer  v.  Knoyle,  43  Kan.  338  —  23 
Pac.  Rep.  487;  Hammond  v.  Davenport,  16  Ohio  St.  177;  Brown  v.  Goble, 
97Jnd.  86;  Walker  v.  Day,  8  Baxt.  77.) 

Is  in  Derogation  of  Common  Law. 

§  10G.  Constructive  service  of  process  is  exceptional  and 
differs  from  that  of  the  common  law,  for  which  reason  the 
requirements  of  the  statute  authorizing  it  must  be  complied 
with  in  every  material  respect,  successively  and  accurately, 
in  order  to  confer  jurisdiction,  pursuant  to  the  weight  of 
authority. 

(Beckett  v.  Cuennin,  15  Colo.  281  —  25  Pac.  Rep.  167  —  22  Am.  St. 
Rep.  399;  Bardwell  v.  Collins,  44  Minn.  97  —  46  N.  W.  Rep.  315  —  20 
Am.  St.  Rep.  547;  Barber  v.  Morris,  37  Minn.  194  —  33  N.  W.  Rep.  559  — 
5  Am.  St.  Rep.  836;  Trust  Co.  v.  Railway  Co.,  139  U.  S.  137  —  11  Sup. 
Ct.  Rep.  512 ;  Charles  v.  Morrow,  99  Mo.  63S  — 12  S.  W.  Rep.  903 ;  Har- 
ness v.  Cravens,  126  Mo.  233  —  28  S.  W.  Rep.  971;  Morey  v.  Morey, 
27  Minn.  205  —  6  N.  W.  Rep.  783;  Colton  v.  Rupert,  60  Mich.  318  —  27 
N.  W.  Rep.  520;  Galpin  v.  Page,  18  Wall.  350;  Hebel  v.  Insurance  Co., 
33  Mich.  400.) 

Though  a  more  liberal  rule  obtains  in  some  states  where  it 
is  held  that  a  judicial  sale  can  not  be  considered  a  nullity  be- 
cause of  some  defect  in  the  constructive  service  of  process 
upon  which  the  judgment  was  rendered,  such  defects  being 
but  irregularities  and  the  judgment  in  consequence  thereof  at 
most  erroneous,  but  can  not  vitiate  it  altogether. 

(Denman  v.  MeGuire,  101  N.  Y.  161  —  4  X.  W.  Rep.  278;  Quarle  v. 
Abbett,  102  Ind.  233  —  1  N.  E.  Rep.  476  —  52  Am.  Rep.  662;  Essig  v. 
Lower.  120  Ind.  239  —  21  N.  E.  Rep.  1090;  Jackson  v.  State.  104  Ind. 
516  —  3  N.  E.  Rep.  863;  Ballinger  v.  Tarbell,  16  Iowa,  491;  Sidwell  v. 
Worthington,   8   Dana,   74.) 

Essential  Jurisdictional  Facts  must  Appear. 

§  107.  According  to  a  decided  preponderance  of  authority 
the  facts  essential  to  confer  jurisdiction  must  affirmatively 


120  VOID  JUDICIAL   AXD   EXECUTION   SALES. 

appear  upon  the  face  of  the  record  when  jurisdiction  to 
render  judgment  against  a  non-resident  is  acquired  by  con- 
structive service,  such  judgment  not  receiving  any  support 
by  way  of  presumptions.  Manifestly,  where  this  doctrine 
obtains  no  amendment  will  be  allowed,  for  to  extend  the  right 
to  supply  or  amend  the  proof  of  publication  so  as  to  show 
that  it  was  sufficient  would  be  incompatible  with  the  doctrine 
that  the  essential  facts  must  affirmatively  appear  upon  the 
face  of  the  record. 

(Beckett  v.  Cuenin,  15  Colo.  281  —  25  Pac.  Rep.  167  —  22  Am.  St.  Hep. 
399:  Furgeson  v.  Jones,  17  Ore.  204  —  20  Pac.  Rep.  842  —  11  Am.  St. 
Rep!  808 T  Noble  v.  Railway  Co.,  147  U.  S.  165  —  13  Sup.  Ct.  Rep.  271; 
Trust  Co.  v.  Buddington,  27  Fla.  233  —  9  So.  Rep.  251 ;  Dick  v.  Forakcr, 
155  U.  S.  404  —  15  Sup.  Ct.  Rep.  124;  Harness  v.  Cravens,  126  Mo. 
S33  —  28  S.  W.  Rep.  971;  Trust  Co.  v.  Railway  Co.,  139  U.  S.  137  —  11 
Sup.  Ct.  Rep.  512;  Granger  v.  Judge,  44  Mich.  384  —  6  N.  W.  Rep.  848; 
Charles  v.  Morrow,  99  Mo.  638  — 12  S.  W.  Rep.  903 ;  Swift  v.  Meyers, 
37  Fed.  Rep.  37;   Galpin  v.  Page,   IS  Wall.  350.) 

But  the  jurisdiction  of  the  court  to  render  a  valid  judg- 
ment upon  constructive  service  is  dependent  upon  the  fact 
that  a  valid  publication  of  the  summons  or  warning  order 
was  made  and  not  upon  the  proof  of  such  publication.  Hence 
where  formal  proof  of  the  due  publication  was  inadvertently 
omitted  it  may  be  supplied  even  subsequent  to  the  rendition 
of  judgment. 

(Railway  Co.  v.  Ashby,  86  Va.  232  —  9  S.  E.  Rep.  1003  —  19  Am.  St 
Rep.  891;  In  re  Newman,  75  Cal.  213  —  16  Pac.  Rep.  887  —  7  Am.  St. 
Rep.  146;  Sichler  v.  Look,  93  Cal.  600  —  29  Pac.  Rep.  220;  Wilkinson  v. 
Conaty,  65  Mich.  614  —  32  N.  W.  Rep.  841;  Heilen  v.  Heilen.  94  Cal. 
636  —  30  Pac.  Rep.  8;  Burr  v.  Seymour,  43  Minn.  401  —  45  N.  W.  Rep. 
715;  Webster  v.  Daniel,  47  Ark.  131  —  14  S.  W.  Rep.  550;  In  re  Schlee, 
65  Mich.  362  —  32  N.  W.  Rep.  717;  Britton  v.  Larsen,  23  Neb.  806  —  37 
N.  W.  Rep.   6S1.) 

And  the  proof  of  due  publication  will  be  presumed  to  have 
been  made  before  the  rendition  of  judgment  if  it  is  lost  or 
can  not  be  found. 

(Sichler  v.  Look,  93  Cal.  600  —  29  Pac.  Rep.  220;  Clyburn  v.  Rey- 
nolds,  31   S.   C.   91  —  9   S.   E.    Rep.    973.) 

So  the  failure  to  make  proof  in  the  manner  and  form  re- 
quired by  law  is  held  riot  to  be  fatal  to  the  validity  of  the 


CONSTRUCTIVE  SERVICE  OF  PROCESS  OR  NOTICE.  121 

judgment,  but  a  mere  irregularity  not  affecting  the  juris- 
diction. 

(Webster  v.  Daniel,  47  Ark.  131  —  14  S.  W.  Rep.  550.) 

Therefore  it  may  be  amended  in  conformity  with  the  true 
facts  and  a  sufficient  publication  thus  shown. 

(Frisk  v.  Reigleman,  75  Wis.  499-43  N.  W.  Rep.  HIT;  Hackett  v. 
Lathrop,  36  Kan.  661-14  Pac.  Rep.  220;  Robinson  v.  Hall,  33  Kan. 
139—5   Pac.   Rep.    763.) 

Where  this  liberal  rule  prevails  recitals  in  the  record 
showing  due  service  to  have  been  made  may  supply  the  place 
of  actual  proof  of  publication  in  the  absence  of  anything  ap- 
pearing to  contradict  it. 

(Davis  v.  Robinson,  70  Tex.  394-7  S.  W.  Rep.  749;  Beattie  v.  Wil- 
kinson,   36    Fed.    Rep.    646.) 

In  Washington  it  is  held  that  the  service  by  publication  is 
insufficient  when  it  does  not  appear  that  a  printed  copy  of 
the  summons  was  returned  with  the  affidavit  of  the  publisher 
of  the  newspaper  as  required  by  statute. 

(State  v.  Superior  Court,   6  Wash.  352-33   Pac.  Rep.   827.) 

In  What  Cases  Permissible. 

§  108.  It  is  the  settled  doctrine  in  America  that  the  ques- 
tion as  to  the  kind  of  notice  required  in  any  class  of  cases, 
in  actions  and  proceedings  against  its  own  citizens  is  a  mat- 
ter entirelv  within  the  control  of  the  state,  just  so  long  as  the 
federal  constitutional  inhibition  against  the  taking  of  prop- 
erty without  due  process  of  law  is  not  contravened.  Ac- 
cordingly, constructive  notice  may  be  prescribed  as  a  sub- 
stitute for  actual  notice  in  any  case  when  this  is  not  m  viola- 
tion of  the  constitutional  guaranty.  But  this  right  does  not 
extend  to  actions  wherein  a  purely  personal  judgment  is 
sought  to  be  obtained  upon  published  notice,  notwithstanding 
the  defendant  be  a  resident  of  the  state,  such  judgment  be- 
ing unalterably  void. 

'(Griffith  v.  Harvester  Co..  92  Iowa,  634-61  N  W  Rep.  243  -  M  A»u 
St.  ReP.  573;  Bardwell  v.  Collins.  44  Minn.  97-46  N  W  Rep_  315  -0 
L.  St  Rep.  547;  Eliot  v.  MeCormick,  144  Mass.  10-10  *  E  Rep. 
705;  Brown  v.  Campbell.  100  Cal.  635-35  Pac.  Rep  433  -38  Am  St. 
Bep.  314;  Real  Estate  Co.  v.  Hendrix,  28  Ore  485-42  Pac.  * p_ 514- 
52  Am  St  Rep.  800;  Winrfree  v.  Bagley,  102  N.  C.  515-9  S.  E.  Rep. 
198;  Rank  V.  Bank,  83  Tenn.  279-12  S.  W.  Rep.  545.) 


122  VOID    JUDICIAL    AND    EXECUTION    SALES. 

Although  a  personal  judgment  binding  the  defendant  per- 
sonally and  creating  a  general  lien  upon  his  property  can  not 
be  rendered  upon  constructive  service  of  process  only,  yet  in 
proceedings  in  ran  against  his  property  previously  seized 
constructive  notice  is  sufficient  to  support  a  judgment  of  con- 
demnation of  the  property  thus  subjected  for  the  payment 
of  such  claims  as  the  plaintiff  asserts. 

(Lydiard  v.  Chute,  <15  Minn.  277  —  47  N.  W.  Rep.  967;  Brown  v.  Camp- 
bell, 100  Cal.  635  —  35  Pac.  Rep.  433  —  38  Am.  St.  Rep.  314;  Real  Estate 
Co.  v.  Hendrix,  28  Ore.  485  —  42  Pae.  Rep.  514  —  52  Am.  St.  Rep. 
S00;  Quarle  v.  Abbett,  102  Ind.  233  —  1  N.  E.  Rep.  476  —  52  Am.  Rep. 
662;  Smith  v.  Griffin,  59  Iowa,  409  —  13  N.  W.  Rep.  423;  Cooper  v. 
Reynolds,   10  Wall.   308;   Pennoyer  v.  Neff,   95  U.   S.   714.) 

And  publication  is  also  permissible  in  actions  for  the  en- 
forcement of  some  instruments  giving  specific  liens  upon 
property,  whether  real  or  personal,  situated  within  the  ter- 
ritorial jurisdiction  of  the  court,  such  as  the  foreclosure  of 
mortgage  and  other  liens. 

(Crombie  v.  Little,   47  Minn.  5S1  —  50  N.  W.  Rep.   823.) 

Constructive  service  is  also  authorized  in  proceedings  af- 
fecting the  title  to  land  lying  within  the  state,  such  as  in 
actions  to  remove  a  cloud  or  to  quiet  title,  to  set  aside 
fraudulent  conveyances,  to  establish  a  trust  in  lands,  and 
the  like. 

(Hardy  v.  Beaty,  84  Tex.  562  —  19  S.  W.  Rep.  778  —  31  Am.  St. 
Rep.  80;  Adams  v.  Cowles,  95  Mo.  501  —  S  S.  W.  Rep.  711  —  6  Am.  St. 
Rep.  74;  McLaughlin  v.  McCrary,  £5  Ark.  442  —  18  S.  W.  Rep.  762; 
Dillon  v.  Hiller,  39  Kan.  599  —  18  Pac.  Rep.  693;  Land  &  Water  Co. 
v.  Boskin.  43  Fed.  Rep.  323;  Bridge  Co.  v.  Packing  Co.,  46  led.  Rep. 
584;   Morris  v.   Graham,   51   Fed.   Rep.   53.) 

In  Iowa  it  was  held  that  notwithstanding  the  debtor's 
lands  were  properly  attached  and  due  service  was  made  by 
publication,  if  a  personal  judgment  is  rendered  against  him 
and  the  attached  lands  sold  under  execution,  the  sale  of  the 
lands  is  illegal  and  void,  and  the  title  deraigned  through 
such  proceeding  is  a  nullity. 

(Cassidy  v.   Woodward,   77  Iowa,   354  —  42   N.   W.   Rep.   319.) 

Amendment  of  Complaint. 

§  109.  Where  jurisdiction  is  acquired  solely  by  the  seizure 
or  attachment  of  the  defendant's  property  located  within  the 


CONSTRUCTIVE  SERVICE  OF  PROCESS  OR  NOI  I  123 

territorial  jurisdiction  of  the  court  followed  by  a  valid  publi- 
cation of  notice,  the  plaintiff  is  restricted  to  the  cause  of 
action  set  out  in  his  complaint,  and  on  the  plainest  of  prin- 
ciples can  not  enlarge  his  original  cause  of  action  against 
the  defendant,  bv  an  amendment,  wh<  aidant  does 

not  voluntarily  "appear  in  the  action.     The  admonition  ex 
tended  to  the  defendant  by  the  publication,  in  contemplation 
of  law    brings  him  before  the  court,  in  case  of  his  non-ap- 
pearance, only  for  the  purposes  of  the  action  as  it  existed 
at  the  time  he  was  constructively  notified  and  for  no  other 
purpose.     Consequently,  for  this  purpose  only  was  his  prop- 
erty subjected  bv  attachment,  and  a  judgment  rendered  tor 
anything  else  is  manifestly  void  to  an  equal  degree  as  if  no 
seizure  at  all  had  been  made,  in  which  case  the  judgment 
would  be  a  nullity.     TTonee,  if  the  judgment  in  such  case  is 
an  entirety  it  is  totally  void,  and  if  sequestered,  the  judgment 
on  the  cause  of  action  added  by  amendment  at  least  is  void. 
On  principle  it  would  seem  that  the  invalidity  m  each  case 
may  be  successfully  shown  in  a  collateral  proceeding  as  the 
defect  is  apparent  upon  the  face  of  the  record. 

(Roberts  v.  Improvement  Co..  126  Mo.  460-29  8.  W.  Rep.  548:  Stew- 
ar W  ABderson^O  Tex.  588-8  8.  W.  Rep  295;  Vorce  v.  Fag.  28 
Neb  294-44  N.  W.  Rep.  452;  Mudge  v.  Steinhart.  78  CaL  34-20  Pac. 
Rep.  17;  Janney  v.  Spedden,  38  Mo.  395;  McMixm  v.  Whelan,  27  Cal. 
300;  Boswell  v.  Dickinson,  4  McLean,   262.) 

What  Affidavit  for  Publication  Must  show. 

§  110    The  course  of  procedure  prescribed  by  the  statutes 
of  the  various  states  for  the  acquisition  of  jurisdiction  by 
constructive  service  of  process,  where  actual  notice  can  not 
be  had,  is  quite  uniform  in  its  principal  features.      I  suaily 
in  order  to  permit  a  resort  to  constructive  notice  a.  a  means 
of  bringing  the  defendant,  or  his  property,  within  the  juris- 
diction of  the  court  so  as  to  authorize  it  to  adjudicate  upon 
the  property,  it  must  be  made  to  appear  by  affidavit  that  the 
cause  belongs  to  the  class  of  cases  in  which  such  service  is  al- 
lowed     Wo  this  it  must  be  shown  that  the  defendant  is 
a  non-resident  or  can  not  after  due  diligence  be  found  withm 
the  state    and  that  one  or  more  of  the  grounds  enumerated 
in  the  statute  for  making  publication  exist ;  or  he  must  show 


124:  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

some  ground  upon  which  a  resident  defendant  may  be  noti- 
fied by  publication  under  the  statute. 

(McCracken  v.  Flanagan,  127  N.  Y.  493  — 2S  N.  E.  Rep.  3S5  —  24  \in. 
St.  Rep.  481;  Bryan  v.  Publishing  Co.,  112  N.  Y.  382  —  19  N.  E.  Rep. 
825;  Landrue  v.  Lund,  38  Minn.  538  —  38  N.  W.  Rep.  699;  Ligare  v. 
Railway  Co.,  76  Cal.  610  —  18  Pac.  Rep.  777;  Frisk  v.  Reiglenian,  75 
Wis.  499  —  44  N.  W.  Rep.  766.) 

Generally  only  the  facts  required  by -the  statute  must  be 
made  to  appear  by  the  affidavit  for  publication,  in  order  to 
give  the  court  authority  to  act. 

(Games  v.  Mitchell.  82  Iowa,  601  —  48  N.  W.  Rep.  941;  Anderson  v. 
Goff,  72  Cal.  68  —  13  Pac.  Rep.  73  —  1  Am.  St.  Rep.  34;  Taylor  v. 
Ormsby,  66  Iowa,  110  —  23  N.  W.  Rep.  28S.) 

Strict  Rule  Prevails  in  Some  States. 

§  111.  Pursuant  to  the  doctrine  announced  in  some  cases 
the  making  of  the  affidavit  is  an  essential  jurisdictional  step 
in  the  proceeding,  and  a  very  strict  compliance  with  the 
statutory  requirement  in  regard  to  the  affidavit  is  demanded. 
Thus  it  has  been  held  that  the  publication  of  a  summons  is 
wholly  ineffectual  unless  the  affidavit  had  been  filed,  the 
filing  of  which  being  held  a  condition  precedent  to  authorize 
publication,  this  mode  of  conferring  jurisdiction  being 
purely  statutory  the  requirements  of  the  statute  must  be 
complied  with  or  the  proceedings  are  void. 

(Barber  v.  Morris,  37  Minn.  194  —  33  N.  W.  Rep.  559  —  5  Am.  St. 
Rep.  836;  Cummings  v.  Tabor.  61  Wis.  1S5  — 21  N.  W.  Rep.  72;  Murphy 
V.  Lyons.  19  Neb.  689  —  28  N.  W.  Rep.  328;  Brown  v.  Railway  Co.,  38 
Minn.  506  —  38  N.  W.  Rep.  698;  Anderson  v.  Coburn,  27  Wis.  562.) 

Thus  it  is  held  in  Nebraska  that  if  the  affidavit  required 
by  the  statute  is  filed  immediately  after  the  first  publication 
the  judgment  is  nevertheless  void. 

(Murphy  v.  Lyons,  19  Neb.  689  —  28  N.  W.  Rep.  328.) 

Liberal  Rule  Elsewhere. 

§  112.  On  the  other  hand  it  is  elsewhere  contended  that 
the  total  absence  of  the  affidavit  upon  which  the  order  of 
publication  is  based  is  not  such  a  jurisdictional  defect  as 
would  be  fatal  to  the  validity  of  the  judgment,  and  this 
especially  where  the  order  recites  that  the  fact  was  made  to 
appear  that  the  defendant  is  a  non-resident  of  the  state.    In 


COXSTKUCTIYE  SERVICE  OF   PROCESS  OK  NOTICE.  125 

such  case  the  same  favorable  presumption  being  indulged  as 
in  case  of  personal  service. 

(Hardy  v.  Baty,  84  Tex.  062-19  S.  W.  Rep.  "S-^te^- 
80;   Ward  v.   Lowndes,  96  N.  C.   367-2  S.  E.  Rep.   591,    btawut  v. 
Anderson,  70  Tex.  588  -  8  S.  W.  Rep.  295 ;   .loan  v.   1  hompson    4 
Civ.  App.  419-23  S.  W.  Rep.  613;  Newcomb  v.  Newcomb,  13  Bu.h,  371.) 

Probative  Facts  Must  Appear. 

S  113    In  nearly  all  of  the  states  it  is  necessary  in  order 
to  justify  constructive  service  that  the  affidavit  does  not  only 
show  the  defendant's  non-residence,  but  also  that  he  can  not, 
after  due  diligence,  be  found  within  the  state.      I  he  Probative 
facts  must  be  disclosed  showing  what  was  done  toward  find- 
ing the  defendant  within  the  state,  thus  enabling  the  court 
to  determine  whether  such  acts  constitute  due  diligence  or 
not.     Accordingly,  when  any  facts  are  thus  stated  showing 
what  was  done  toward  ascertaining  the  defendants  where- 
abouts, jurisdiction  attaches  sufficiently  to  determine  their 
sufficiency,  and  if  held  to  be  sufficient  the  judgment  based 
upon  notice  given  under  it  can  at  most  be  but  erroneous,  and 
therefore  not  open  to  collateral  impeachment. 

(McCraeken  v.  Flanagan.  127  N.  Y.  493  -  28  K .  E  Re p  3 Sender- 
son  V.  Marshal,  7  Mont.  288-16  Pac.  Rep.  576;  *f™\^f*> 
13  Mont.  184-33  Pac.  Rep.  132;  Beach  v.  Beach,  6  DaL  3d  « 
W  Bop  701;  Landru  v.  Lund,  38  Minn.  538-38  N.  W.  Rep.  699,  Ligare 
^Railway  Co.,  76  Cal.  610-18  Pac.  Rep.  777;  Behnon £  <«£ JJ 
N.  Y.  256;  Pike  V.  Kennedy,  15  Ore.  420-15  Pac.  Rep.  63,;  McDonald 
v.   Cooper,   32  Fed.  Rep.   745.) 

It  is  fundamental  that  if  personal  service  can  be  had  upon 
defendant  constructive  service  is  not  authorized.  Therefore, 
where  the  statute  requires  the  affidavit  for  publication  to 
show,  in  addition  to  the  fact  that  the  defendant  is  a  non- 
resident that  service  can  not  be  made  upon  him  within  the 
borders  of  the  state,  the  failure  to  allege  the  impossibility  ot 
personal  service  within  the  state  renders  the  whole  proceed- 
ing null  and  void. 

(McCracken  v.  Flanagan.  127  N.  Y.  493-28  N.  E.  Kep. 
v.  Waster,  13  Mont.  184-33  Pac.  Rep.  132;  Adams  v.  Baldwin, 
Kan.  7S1  — 31  Pac.  Rep.  681.) 

In  New  York  it  is  held  that  the  affidavit  must  show  that 
the  defendant  can  not  be  found  within  the  state  after  using 


126  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

due  diligence.  If  the  affidavit  fails  to  show  due  diligence 
there  is  a  failure  of  jurisdiction  no  matter  how  minutely 
every  other  statutory  requirement  has  been  complied  with, 
and  a  sale  of  land  under  the  coercive  process  of  the  law 
emanating  from  a  judgment  rendered  upon  such  service  is 
void  in  a  collateral  proceeding  in  ejectment. 

(McCracken  v.  Flanagan,  141  N.  Y.  174  —  36  N.  E.  Eep.  10.) 

But  in  Oregon  it  was  held  that  where  the  affidavit  alleges 
that  summons  cannot  be  served  on  defendant  because  he  re- 
sides at  a  particular  place  named  therein,  beyond  the  borders 
of  the  state,  it  was  sufficient  to  confer  jurisdiction. 

(Pike  v.  Kennedy,   15  Ore.   420  —  15   Pac.   Rep.   637.) 

The  Nebraska  statute  requires  the  affidavit  to  state  that 
service  can  not  be  made  within  the  state,  and  the  affidavit 
stated  in  substance  that  defendants  are  non-residents,  and 
that  service  of  summons  can  not  be  made  upon  them,  which 
was  held  to  be  a  defective  averment  rather  than  an  entire 
omission  of  an  essential  fact.  Notwithstanding  the  insuffi- 
cient averment  of  a  material  fact,  the  proceedings  were  not 
considered  void. 

(Britton  v.  Larson,  23  Neb.  806  —  37  N.  W.  Eep.  681.) 

While  in  Montana  and  New  York  the  requirement  of 
showing  due  diligence  in  the  affidavit  is  imperative,  and  an 
averment  in  the  language  of  the  statute  is  considered  in- 
sufficient, but  the  facts  constituting  due  diligence  must  be 
shown,  in  Oregon  and  Washington  it  was  held  that  the  mere 
allegation  of  due  diligence  in  the  language  of  the  statute  was 
sufficient  to  shield  the  judgment  from  collateral  assault  at 
least. 

(Alderson  v.  Marshal,  7  Mont.  288  — 16  Pac.  Eep.  576;  Palmer  v. 
McMaater,  13  Mont.  184  —  33  Pac.  Rep.  132;  McCracken  v.  Flanagan, 

127  N.  Y.  493  —  28  N.  E.  Eep.  385;  McCracken  v.  Flanagan,  141  N.  Y. 
174  —  36  N.  E.  Eep.  10;  Barton  v.  Sanders,  16  Ore.  51  —  16  Pac.  Eep. 
921;  De  Corvet  v.  Dolan,  7  Wash.  365  —  35  Pac.  Eep.  72.) 

Facts  Inferentially  Stated  Only. 

§  114.  In  Kansas  where  the  essential  facts  were  inferen- 
tially stated  in  the  affidavit  instead  of  being  expressly  set 
out,  the  judgment  was  held  not  to  be  a  nullity  but  merely 


CONSTRUCTIVE  SERVICE  OF  PROCESS  OB  NOTICE.     127 

erroneous  and  voidable,  because  the  affidavit  is  not  void  for 
an  entire  want  of  disclosing  such  essential  facts,  but  merely 
irregular  in  not  stating  them  in  direct  and  exact  terms. 

(Long  v.  Fife,  45  Kan.  271  —  25  Pac.  Rep.  594;  Shippen  V.  Kimball, 
47  Kan.  173  —  27  Pac.  Rep.  813.) 

But  it  has  been  held  that  where  there  is  a  statute  requiring- 
that  the  affidavit  shall  show  that  the  defendant  has  property 
within  the  state,  such  showing  should  not  only  be  direct  but 
the  property  should  be  specifically  described,  and  a  state- 
ment on  information  and  belief  is  insufficient,  and  an  entire 
omission  of  the  statement  is  fatal. 

(Feikert  v.  Wilson.  38  Minn.  341-37  N.  W.  Rep.  5S5;  McDonald  v. 
Cooper,  32  Fed.  Rep.  745;  Manning  v.  Hardy,  64  Wis.  630  —  25  N.  W. 
Rep.  1.) 

Affidavit  must  show  Action  to  be  One  Mentioned  in  Statute. 

§  115.  In  Kansas  it  is  held  that  the  affidavit  for  publica- 
tion must  show  that  the  action  is  one  of  those  designated  in 
the  code  wherein  constructive  service  of  process  may  be  had, 
and  if  this  is  not  so  shown  the  defect  is  jurisdictional  and 
fatal  to  the  validity  of  the  judgment. 

(Adams  v.  Baldwin,  49  Kan.  781-31  Pac.  Rep.  6S1;  Harris  v.  Ciafiin, 
36  Kan.  543  —  13  Pac.  Rep.  830.) 

Affidavit  on  Information  and  Belief. 

§  116.  Though  some  facts  must  be  positively  stated  in 
the  affidavit,  as  for  instance  that  the  defendant  has  property 
within  the  state,  yet  as  to  other  matters  a  statement  upon 
information  and  belief  is  considered  sufficient  at  least  upon 
collateral  attach. 

(Van  Wyck  v.  Hardy,  39  How.  Pr.  392;  Harrison  v.  Beard,  30  Kan. 
53^-2  Pac.  Rep.  632;  Colton  v.  Rupert,  60  Mich.  318  —  27  N.  W.  Rep. 
520;  Long  v.  Fife,  45  Kan.  271  —  25  Pac.  Rep.  594;  Sonnoner  v.  Jackson, 
47  Ark.  31  —  14  S.  W.  Rep.  458.) 

But  where  the  statute  requires  positive  averments  in  an 
affidavit  for  attachment,  a  verification  upon  hearsay  and 
belief  was  held  void  and  the  court  acquired  no  jurisdiction 
by  constructive  service  of  process. 

(Trautmann  v.  Schwalm,  80  Wis.  275-50  N.  W.  Rep.  99;  Streiss- 
guth  v.  Reigleman,  75  Wis.  212-43  N.  W.  Rep.  1116.) 


128  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

If  the  affidavit  on  information  and  belief  foUows  the 
exact  language  of  the  statute  it  is  sufficient. 

(Storm  v.  Adams,   56  Wis.   137  —  14  N.  W.   Rep.   69.) 

Object  and  General  Nature  of  the  Action. 

§  117.  In  the  requirement  of  the  statute  existing  in  some 
states  regarding  a  brief  statement  of  the  object  and  general 
nature  of  the  action  to  be  contained  in  the  affidavit  for  publi- 
cation less  strictness  is  demanded  than  perhaps  of  any  other 
provision  of  the  statute,  a  very  general  statement  being  held 
sufficient  to  meet  the  requirement. 

(Adams  v.  Cowles,  95  Mo.  501  —  8  S.  W.  Rep.  711;  McCormick  v. 
Paddock,  20  Neb.  486  —  30  N.  W.  Rep.  602.) 

Affidavit  Must  be  Filed  Before  the  Publication. 

§  118.  Substantial  defects  vitiate  the  published  notice, 
and  if  the  affidavit  authorizing  publication  of  process  is  filed 
too  late,  that  is  after  the  first  publication  instead  of  before, 
it  is  a  fatal  defect,  exposing  the  judgment  subsequently 
rendered  thereon  to  successful  collateral  assault. 

(Murphy  v.  Lyons,  19  Neb.  689  —  28  N.  W.  Rep.  328;  Barber  v.  Mor- 
ris, 37  Minn.  194  —  33  N.  W.  Rep.  559;  Brown  v.  Railway  Co.,  38  Minn. 
506  —  38   N.   W.    Rep.   698.) 

Eelation  of  Affidavit  to  Order  of  Publication. 

§  119.  The  affidavit  of  non-residence  must  relate  to  the 
time  of  the  order  of  publication,  and  must  be  made  con- 
temporaneously with  it,  or  so  nearly  so  that  it  is  reasonably 
certain  that  no  change  could  have  taken  place  by  which  the 
right  to  have  constructive  service  made  was  impaired  or 
affected. 

(Crombie  T.  Little,  47  Minn.  581  —  50  N.  W.  Rep.  823;  Baptist  Union 
v.  Atwell,  95  Mich.  239  —  54  N.  W.  Rep.  760;  Cornwall  v.  Bank,  91  Ky. 
381—18  S.  W.  Rep.  452;  Adams  v.  Hosmer,  98  Mich.  51  —  56  N.  W. 
Rep.  1051;  Forbs  v.  Hyde,  31  Cal.  342.) 

False  Statement  as  to  Cause  of  Action. 

§  120.  The  false  averment  in  the  affidavit  that  the  plain- 
tiff had  a  cause  of  action  when  in  fact  he  had  none,  will  not 
make  the  judgment  rendered  upon  constructive  service  of 
notice  void  in  a  collateral  proceeding,  though  the  judgment 


CONSTBTJCTIVE  SEBVICE  OF  5S  OR  NOT]  129 

may  be  vacated  in  a  direct  action  for  that  purpose  upon  the 
ground  that  jurisdiction  was  fraudulently  obtain* 
(Lawson  v.  Moorman,  85  Va.  880  —  9  S.  E.  Rep.  150.) 

Affidavit  and  Complaint. 

§  121.  In  Michigan  the  statute  requires  that  the  declara- 
tion shall  be  filed  after  proof  of  publication  is  made.  If 
the  declaration  is  filed  before  the  making  of  the  proof  the 
judgment  is  a  nullity  and  may  be  successfully  impeached  in 
a  collateral  action. 

(Nugent  v.  Nugent,  70  Mich.  52  —  37  N.  W.  Rep.  706;  Steere  v.  Van- 
derberg,  67  Mich.  530  —  35  N.  W.  Rep.   110.) 

Verified  Complaint  Must  be  Filed. 

§  122.  In  some  states  where  the  statutes  require  that  the 
order  of  publication  must  be  based  upon  a  Complaint  duly 
verified  and  filed,  showing  a  sufficient  cause  of  action,  an 
order  for  service  of  summons  by 'publication  not  based  upon 
a  verified  complaint  and  filed  is  void,  and  will  not  support  a 
judgment.  The  order  providing  for  constructive  service  can- 
not be  granted  except  on  a  complaint  duly  verified  and  filed, 
and  the  affidavit,  together  disclosing  the  existence  of  the 
necessary  facts  required  by  the  statute. 

(Oelbermann  v.  Ide,  93  Wis.  669  —  68  N.  W.  Rep.  393;  Witt  v.  Meyer, 
69  Wis.  595  —  35  N.  W.  Rep.  25;  Manning  v.  Heady,  64  Wis.  630  —  25 
N.  W.  Rep.  1;  Paget  v.  Stevens,  143  N.  Y.  172  —  38  N,  E,  Rep.  273; 
Cummings  v.  Tabor,  61  Wis.  185  —  21  N.  W.  Rep.  72;  Bryan  v.  Pub- 
lishing Co.,  112  N.  Y.  382  —  19  N.  E.  Rep.  825;  Frisk  v.  Reigleman,  75 
Wis.  499  —  43  N.  W.  Rep.  1117;  Bragg  v.  Gaynor,  85  Wis.  468  —  55  N. 
W.  Rep.  919;  Voelz  v.  Voelz,  80  Wis.  504  —  50  N.  W.  Rep.  398;  Charles 
v.  Morrow,  99  Mo.  638  —  12  S.  W.  Rep.  903.) 

Excepting  where  the  complaint  must  show  a  cause  of 
action  authorizing  constructive  service  the  affidavit  is  the 
sole  foundation  for  the  publication,  or  order  therefor,  and 
the  insufficiency  of  the  complaint  will  not  be  a  ground  for 
setting  the  notice  aside. 

(Mehrhoff  v.  Diffenbacker,  4  Ind.  App.  447  —  31  N.  E.  Rep.  41.) 

Facts  Authorizing  Constructive  Service  Shown  by  Return. 

§  123.  Where  the  statute  provides  that  certain  facts  neces- 
sary  to    authorize   constructive    service    shall   be    made    to 
appear  by  the  return  of  the  sheriff  upon  the  summons  or 
9 


130  VOID    JUDICIAL    AND    EXECUTION    SALES. 

citation,  to  this  extent  the  return  takes  the  place  of  the  affi- 
davit. Such  return  must  disclose  a  state  of  facts  bringing 
the  case  within  the  statute  before  publication  is  authorized. 
(Trust  Co.  v.  Buddington,  27  Fla.  215  —  9  So.  Rep.  251;  Eliot  v.  Mc- 
Cormick,  144  Mass.  10  —  10  N.  E.  Rep.  709.) 

Thus  in  Colorado  a  strict  compliance  with  the  statute  in 
acquiring  jurisdiction  by  this  method  is  exacted,  and  a  sum- 
mons issued,  and  returned  by  the  sheriff  the  same  day  in- 
dorsed "  not  found "  the  decree  upon  published  process 
based  thereon  was  held  void, 

(Israel  v.  Arthur,  7  Colo.  5  —  1  Pac.  Rep.  438.) 

and  in  Michigan  where  the  sheriff  returned  the  writ  four 
days  before  its  return  day,  it  was  held  that  he  failed  to  ex- 
ercise due  diligence  as  required  by  statute,  his  affidavit  to  the 
effect  that  he  did  use  due  diligence  to  the  contrary  notwith- 
standing, and  the  decree  in  foreclosure  upon  published  notice 
and  sale  thereunder  were  considered  nullities. 
(Soule  v.  Hough,  45  Mich.  418  — 8  N.  W.  Rep.  50.) 

Suits  against  Defunct  Corporations  in  Michigan. 

§  124.  In  case  of  suit  against  a  defunct  corporation  the 
statute  required  service  to  be  made  upon  the  last  of  certain 
designated  officials  thereof,  and  if  none  of  these  can  be  found, 
then  upon  some  other  officer  or  member,  or  in  the  alternative 
in  such  manner  as  the  court  where  the  action  is  pending  may 
direct.  The  proceedings  were  held  void  where  the  affidavit 
charged  that  there  is  no  officer  of  the  corporation  residing 
in  the  county,  save  two  persons  shown  to  have  held  the 
position  of  directors,  upon  which  affidavit  the  court  ordered 
service  to  be  made  on  some  other  than  the  designated  officers. 
Service  thus  made  was  held  void  because  there  is  no  showing 
that  such  officers  could  not  be  served  within  the  territorial 
limits  of  the  court. 

(Isabel  v.  Iron  Co.,  57  Mich.  120  —  23  N.  W.  Rep.  613 ;  Rolfe  v.  Dud- 
ley, 58  Mich.  208  —  24  N.  W.  Rep.  657.) 

Order  of  Publication  Must  Contain  Essential  Particulars. 

§  125.  In  order  to  constitute  sufficient  notice  to  the  de- 
fendant the  order  of  publication  must  conform  to  the  require- 
ments of  the  statute  in  every  particular.    Accordingly,  if  the 


CONSTRUCTIVE  SERVICE  OF  PROCESS  OR  NOTICE.      131 

statute  requires  that  the  summons  be  mailed  to  the  defendant 
as  well  as  published,  such  order  must  direct  the  mailing,  and 
if  this  is  omitted  from  the  order  it  is  held  that  the  judgment 
is  void.  The  provision  of  the  law  requiring  such  recital  is 
mandatory  and  the  recital  a  matter  of  substance. 

(Beaupre  v.  Keefe,  79  Wis.  436  —  48  N.  W.  Rep.  596;  Park  v.  High- 
bee.  G  Utah.  414  —  24  Pac.  Rep.  524;  Rieketson  v.  Richardson.  26  Cal. 
140;  Fites  v.  Volmer,  S  N.  Y.  Supp.  294;  Odell  v.  Campbell,  9  Ore.  298.) 

But  the  omission  of  the  word  "  forthwith  "  from  the  order, 
though  the  statute  requires  the  summons  and  complaint  to  be 
mailed  forthwith,  will  not  expose  the  proceedings  to  success- 
ful collateral  impeachment. 

(Anderson  v.  Goff,  72  Cal.  65  —  13  Pac.  Rep.  73.) 

Issued  by  Clerk  without  Order  from  Court. 

§  126.  An  order  of  publication  issued  by  the  clerk  without 
an  order  from  the  court  or  judge  authorizing  it  is  void  and 
the  judgment  rendered  upon  publication  of  such  order,  and 
the  sale  of  property  thereunder,  are  void  for  want  of  juris- 
diction. 

(Royer  v.  Foster,  62  Iowa,  321—17  N.  W.  Rep.  516;  Miller  v.  Corbin, 
46  Iowa,  150;  Bardsley  v.  Hines,  33  Iowa,  157.) 

Misnomer  of  Plaintiff  or  Defendant. 

§  127.  In  the  absence  of  an  appearance  the  misnomer  of 
the  plaintiff  or  defendant  in  the  affidavit  for  publication  will 
be  fatal  to  the  proceedings. 

(Newman  v.  Bowers,  72  Iowa,  465  —  34  N.  W.  Rep.  1051.) 

So  it  has  been  held  that  a  misnomer  of  the  defendant 
in  the  published  process  is  a  fatal  error  and  will  render  the 
judgment  which  is  based  thereon  void. 

(Meyer  v.  Kuhn,  13  C.  C.  A.  298  —  65  Fed.  Rep.  705;  Carrigan  v. 
Schmidt.  126  Mo.  304  —  28  S.  W.  Rep.  874;  Hardester  v.  Sharrett,  84 
Md.  146  — 34  Atl.  Rep.  1122;  Skelton  v.  Sackett,  91  Mo.  377  —  3  S.  W. 
Rep.  874;  Newman  v.  Bowers,  72  Iowa,  465  —  34  N.  W.  Rep.  212;  Clerk 
v.  Hillis,  134  Ind.  421  —  34  N.  E.  Rep.  13;  Railway  Co.  v.  Smith,  78 
111.   96.) 

Order  Providing  for  Unauthorized  Service. 

§  128.  The  order  is  the  authority  for  making  the  service 
by  publication,  and  if  it  provides  for  an  unauthorized  service. 


132  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

the  fact  that  a  proper  service  was  made  will  be  of  no  avail 
for  the  proceedings  are  nevertheless  void ; 

(Beaupre  v.  Keefe,  79  Wis.  436  —  48  N.  W.  Rep.  596.) 

though  surplusage  in  the  order  is  immaterial  if  it  is  other- 
wise sufficient  in  form  and  substance. 

(Cruzen  v.  Stevens,  123  Mo.  335  —  27  S.  W.  Rep.  557.) 

Order  Abridging  the  Time  for  Appearance. 

§  129.  In  Minnesota  and  Kentucky  and  several  other 
states  the  statute  requires  that  the  order  shall  expressly  re- 
quire the  defendant  to  appear  on  a  day  definite.  Where  this 
provision  has  been  contravened  by  an  order  providing  for  the 
defendant's  appearance  at  an  earlier  day  the  service  is  void 
and  insufficient  to  confer  jurisdiction. 

(Bird  v.  Norquist,  46  Minn.  31S  — 4S  N.  W.  Rep.  1132;  Payne  v. 
Hardesty,  14  S.  W.  Rep.  348;  Brownfield  v.  Dyer,  7  Bush,  505;  Miller 
v.  Hall,  3  T.  B.  Mon.  243.) 

However,  where  there  is  no  such  requirement  of  statute 
and  the  defendant  must  appear  and  answer  within  a  fixed 
number  of  days  after  publication,  a  judgment  by  default 
granted  before  the  expiration  of  such  period  will  not  be  a 
nullity  but  merely  erroneous,  and  hence  not  subject  to 
collateral  impeachment. 

(In  re  Newman,  75  Cal.  213  —  16  Pac.  Rep.  887.) 

And  it  has  been  held  that  the  premature  hearing  of  an 
action  wherein  jurisdiction  is  sought  to  be  acquired  by  con- 
structive service  of  summons  will  not  invalidate  the  judg- 
ment so  as  to  make  it  a  nullity. 

(Carr  v.  Carr,  92  Ky.  552  — IS  S.  W.  Rep.  453.) 

Publication  for  too  Short  Period. 

§  130.  There  is  a  conflict  of  authority  as  to  the  effect  of  a 
summons  published  for  a  time  less  than  by  law  required. 
Pursuant  to  some  adjudications  such  service  is  sufficient  to 
protect  the  judgment  and  subsequent  proceedings  thereunder 
from  successful  collateral  impeachment. 

(In  re  Newman,  75  Cal.  213  —  16  Pac.  Rep.  SS7;  Essig  v.  Lower.  120 
Ind.  239  —  21  N.  E.  Rep.  1090;  Havens  v.  Drake,  43  Kan.  484  —  23  Pac. 
Rep.  621;  Berrian  v.  Rogers,  43  Fed.  Rep.  467;  Herring  v.  Chambers, 
103  Pa.  St.  172;  Smith  v.  Dubuque,  1  Iowa,  492;  Davis  v.  Robinson,  70 
Tex.  394  —  7  S.  W.  Rep.  749.) 


CONSTRUCTIVE  SERVICE  OF  PROCESS  OR  NOTICE.  133 

Other  cases  are  directly  in  conflict  with  this  rule  holding 
this  to  be  a  fatal  error. 

(Bell  v.  Good,  19  N.  Y.  Supp.  G93.) 

Mere  Irregularities  in  Notice  not  Fatal. 

§  131.  Considerable  difference  is  found  in  the  statutes  of 
the  several  states  as  to  what  the  publication  shall  contain,  in 
some  a  summons  is  required,  while  in  others  the  notice  must 
contain  the  substance  of  the  summons  or  citation,  though  in 
either  case  a  substantial  compliance  with  the  statute  in  this 
regard  will  be  sufficient.  Therefore,  mere  irregularities  in 
the  form  of  the  notice  or  its  publication  are  not  considered 
jurisdictional  defects  though  they  may  be  of  sufficient  gravity 
to  avoid  the  service  on  a  direct  proceeding. 

(Adams  v.  Cowles,  95  Mo.  501  —  8  S.  W.  Rep.  711;  Webster  v.  Daniel, 
47  Ark.  131  —  14  S.  W.  Rep.  550.) 

Death  of  Defendant  Pending  Publication. 

§  132.  Constructive  service  can  not  be  made  upon  one  who 
is  then  not  living,  and  if  the  defendant  dies  before  the  com- 
pletion of  the  publication  the  notice  and  action  are  sus- 
pended. If  the  plaintiff  desires  to  prosecute  his  action 
further  a  new  notice  must  be  given  to  substituted  parties. 

(Thompson  v.  McCorkle,  136  Ind.  484  —  34  N.  E.  Rep.  813;  Reilly  v. 
Hart,  130  N.  Y.  625  —  29  N.  E.  Rep.  1099;  Paget  v.  Pease,  2  1ST.  Y.  Supp. 
335.) 

One  Publication  on  Ndn-judicial  Day. 

§  133.  In  Minnesota  it  is  held  that  where  one  of  the 
necessary  publications  of  process  was  made  on  a  legal  holi- 
day the  jurisdiction  of  the  court  will  not  on  that  account 
alone  be  affected. 

(Malmgren  v.  Phinney,  50  Minn.  457  —  52  N.  W.  Rep.  915.) 

But  where  by  statute  the  service  of  a  summons  on  a  Sun- 
day is  illegal  it  is  held  that  publication  of  a  summons  against 
a  non-resident  on  that  day  is  insufficient  for  any  purpose. 

(McLaughlin  v.  Wheeler,  1  S.  Dak.  497  —  50  N.  W.  Rep.  834.) 

Unknown  Defendants  Served  Constructively. 

§  134.  Actions  are  sometimes  commenced  which  are  not 
strictly  in  rem,  and  there  are  parties  defendant  who  are 
wholly  unknown  to  the  plaintiff,  as,  for  instance,  a  demand 


134  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

against  a  deceased  debtor  whose  estate  consists  of  lands,  and 
who  leaves  unknown  heirs.  Also  suits  against  unknown 
heirs  or  devisees  in  actions  to  quiet  title  or  to  establish 
an  equity  in  land  the  legal  title  to  which  rests  in  un- 
known defendants.  Statutes  permitting  such  proceedings 
have  uniformly  been  construed  very  strictly,  being  in  deroga- 
tion to  the  common  law.  Accordingly  it  is  held  in  Alabama 
that  while  proceedings  against  unknown  heirs  can  be  main- 
tained in  chancery,  the  statute  not  providing  for  it  in  pro- 
bate sales,  the  proceedings  in  the  latter  court  are  fatally 
defective. 

(Bingham  v.  Jones,  84  Ala.  202  —  4  So.  Rep.  409.) 

All  such  actions  are  in  the  nature  of  proceedings  in  rem 
concerning  property  situated  within  the  jurisdiction  of  the 
court,  and  it  is  generally  conceded  that  the  state  has  au- 
thority to  clothe  the  court  with  power  to  inquire  into  and 
adjudicate  as  to  the  status,  title  and  ownership  of  such  prop- 
erty, where  service  by  publication  only  is  had. 

(Shepherd  v.  Ware.  4G  Minn.  174  —  48  X.  W.  Rep.  773;  Barclay  v. 
Hendricks,  4  T.  B.  Mon.  252.) 

Under  most  statutes  the  affidavit  for  publication  must 
disclose  the  name  of  the  defendant  against  whom  the  publi- 
cation is  to  be  made,  and  the  order  of  publication  must  run 
in  his  name,  though  under  some  statutes  parties  may  be  pro- 
ceeded against  upon  constructive  service  by  fictitious  names 
or  as  unknown  defendants  when  a  showing  is  made  by  affi- 
davit or  complaint  sworn  to  that  the  name  of  the  party  is 
unknown  and  can  not  after  due  diligence  be  ascertained. 
Such  statutes  are  not  complied  with  where  the  affidavit 
merely  shows  that  the  unknown  party  is  a  non-resident,  but 
it  must  also  be  shown  that  his  name  is  unknown  and  can  not 
be  ascertained  upon  using  due  diligence. 

(Bleidon  v.  Canal  &  Mining  Co..  89  Tenn.  16S  — 15  S.  W.  Rep.  737.) 

Strict  compliance  with  the  requirements  of  the  statute  is 
demanded  in  order  to  bind  the  unknown  heirs  of  a  deceased 
person  by  constructive  notice.  Hence  a  misnomer  of  the  de- 
cedent is  a  fatal  defect. 

(HardeBter  v.  Bharretts,  84  Md.  146  —  34  Atl.  Rep.  1122.) 


CONSTRUCTIVE  SEEVICE  OF  TROCESS  OR  NOTICE.  135 

And  where  the  statute  requires  the  statement  in  regard 
to  the  interest  of  unknown  defendants  to  be  verified  the 
court  acquires  no  jurisdiction  unless  this  is  done. 

(Charles  v.  Morrow,  99  Mo.  63S  — 12  S.  W.  Rep.  903.) 

So  a  proceeding  in  foreclosure  of  a  tax  lien  by  publication 
against  unknown  defendants  upon  unverified  petition  where 
the  notice,  nor  the  paper  in  which  it  was  published,  were 
neither  ordered  nor  approved  by  the  court,  the  verification, 
order  and  approval  being  statutory  requirements,  the  sale  is 
absolutely  void. 

(Guise  v.  Earley,  72  Iowa,  283  —  33  N.  W.  Rep.  683.) 

Personal  Service  Outside  of  the  State. 

§  135.  In  effect  personal  service  of  summons  outside  of 
the  state  is  but  constructive  service  and  confers  no  greater- 
authority  upon  the  court  than  if  the  summons  had  been  pub- 
lished in  a  newspaper.  In  many  states  personal  service  thus 
made  is  allowed,  and  the  proceedings  anterior  to  such  service 
are  usually  the  same  as  if  the  summons  is  to  be  published. 
Accordingly  the  judgment  is  in  rem  and  the  res  must  have 
been  previously  subjected  to  the  jurisdiction  of  the  court  by 
seizure.  Or  in  other  words,  the  court  must  have  acquired 
jurisdiction  provisionally  over  the  property  by  reason  of 
attachment,  or  by  suit  for  the  foreclosure  of  mortgage  or 
other  lien  upon  the  specific  property.  A  personal  judgment 
upon  such  service  can  no  more  be  rendered  than  where  the 
only  summons  is  a  published  one. 

(Wilson  v.  Railway  Co..  10S  Mo.  588-18  S.  W.  Rep.  286;  Wilson  v. 
Seligman,  144  U.  S.  41  —  12  Sup.  Ct.  Rep.  541;  Graham  v.  O'Bryan,  120 
x  c  403  —  27  S.  E.  Rep.  122:  McBain  v.  McBain,  77  Cal.  507  —  20  Pac. 
Rep  61;  Brewing  Co.  v.  Hirseh,  7*  Tex.  192  —  14  S.  W.  Rep.  150;  Cuda- 
bac  v.  Strong,  67  Miss.  705-7  So.  Rep.  543:  Crouter  v.  Crouter,  133 
N  Y  55  —  30  N.  E.  Rep.  726;  Williams  v.  Welton,  28  Ohio  St.  451; 
National  Rank  v.  National  Bank,  S9  N.  Y.  397;  Crouter  v.  Crouter,  17 
N.  Y.  Supp.  75S.) 

Affidavit  Made  by  Unauthorized  Person. 

§  136.  In  Colorado  it  is  held  that  tin1  judgment  will  be 
void  where  the  affidavit  of  non-residence  is  made  by  the  at- 
torney for  the  plaintiff,  the  statute  requiring  that  it  shall  be 
made  by  the  party  himself. 

(Davis  v.  Lumber  Co..  2  Colo.  App.  381-31  Pae.  Rep.  187;  Lumber 
Co.  v.  Park,  4  Colo.  App.  482  —  36  Pac.  Rep.  445.) 


.136  VOID    JUDICIAL    AXD    EXECUTIOX    SALES. 

Publication  against  Unknown  on  Petition  against  Known 
Owner. 

§  137.  In  condemnation  proceedings  in  Illinois  where  the 
petition  mentions  a  party  defendant  as  a  known  owner,  par- 
ticularly describing  his  lands,  publication  of  process  against 
unknown  owners  is  insufficient  in  the  absence  of  other  ser- 
vice to  confer  jurisdiction  to  condemn  the  property  of  the 
known  owner,  and  the  judgment  of  condemnation  against 
him  and  his  property  is  an  absolute  nullity. 

fDickey  v.  Chicago,  152  111.  468  —  38  N.  E.  Rep.  932.) 

DISQUALIFICATION   OF   JUDGE. 

Renders  Proceedings  Invalid. 

§  138.  Notwithstanding  the  law  confers  jurisdiction  of 
the  subject-matter  of  the  action  upon  the  court,  and  despite 
the  fact  that  jurisdiction  of  the  person  of  the  defendant  has 
been  regularly  acquired,  yet  on  account  of  the  disqualification 
of  the  presiding  judge  of  the  court  from  presiding  as  such 
in  the  particular  cause,  the  court  can  not  proceed  to  judgment 
therein.  Accordingly,  if  such  judge,  notwithstanding  his 
incompetency  by  reason  of  disqualification,  still  proceeds  with 
the  cause,  the  final  judgment  thus  rendered  is  generally  con- 
sidered to  be  invalid.  Therefore,  the  previous  relation  of 
attorney  and  client  disqualifies  a  judge  from  sitting  in  the 
case  even  in  the  absence  of  statutory  provision  making  such 
relation  a  disqualification,  for  the  rule  is  but  the  evolution 
of  the  elementary  maxim  of  common  justice  that  prohibits 
one  from  acting  as  judge  in  his  own  lawsuit. 

(Railway  Co.  v.  Railway  Co.,  30  Fla.  595  —  11  So.  Rep.  562;  State  v. 
Hooker,  15  So.  Rep.  583  ;  Curtis  v.  Wilcox.  74  Mich.  69  —  41  N.  W.  Rep. 
863;  Gaines  v.  Barr,  60  Tex.  676;  Moser  v.  Julian.  45  X.  H.  52.) 

Statute  Contravened  Makes  Proceedings  Void. 

§  139.  Where  judges  are  prohibited  by  law  from  acting 
in  special  cases,  as  where  interested,  or  a  party,  or  relation 
by  consanguinity  or  affinity  to  either  party,  it  lias  often  been 
held  and  is  the  settled  doctrine  that  the  action  of  the  judge 
in  contravention  of  the  statute  is  coram  non  jlldice  and  void, 
to  the  extent  that  it  may  be  successfully  impeached  in  a  col- 
lateral proceeding.     This  rule  has  been  applied  with  such 


DISQUALIFICATION    OF    JUDGE.  137 

inexorable  rigidity  that  when  a  judge  is  thus  disqualified 
from  acting,  not  even  the  consent  of  parties  interested  can 
vest  him  with  authority  to  act  in  the  case. 

(Dallas  v.  Peacock,  89  Tex.  58  —  33  S.  VV.  Rep.  220;  Chambers  v. 
Hodge,  23  Tex.  104;  Moses  v.  Julian,  45  N.  H.  52  —  84  Am.  Dec.  114; 
Frevert  v.  Swift,  19  Nev.  3G3  — 11  Pac.  Rep.  273 ;  Hall  v.  Thoyer,  105 
Mass.  219  —  7  Am.  Rep.  513.) 

The  policy  of  the  law  in  its  tendency  to  maintain  the  un- 
sullied purity  of  judicial  tribunals  militates  against  the 
granting  of  permission  to  contravene  the  statutory  limita- 
tions and  brands  as  void  the  acts,  orders  and  judgments  of 
a  court  when  the  judge  has  transcended  his  authority  under 
such  circumstances.  The  impartiality  which  the  law  requires 
of  a  judge  is  wholly  incompatible  with  his  own  actual  pe- 
cuniary interest,  or  the  interest  by  implication  by  reason  of 
relationship  to  the  litigants. 

(Hortou  v.  Howard,  79  Mich.  642  —  44  N.  W.  Rep.  1112;  Railway  Co. 
v.  Summers.  113  Ind.  10  —  14  N.  E.  Rep.  733;  Keeler  v.  Stead,  50  Conn. 
501  —  16  Atl.  Rep.  552;  Frevert  v.  Swift,  19  Nev.  363  —  11  Pac.  Rep. 
273;  State  ex  rel.  Colcord  v.  Young,  31  Fla.  594  —  12  So.  Rep.  673; 
West  v.  Wheeler,  49  Mich.  505  —  13  N.  W.  Rep.  836;  Austin  v.  Nalle, 
85  Tex.  520  —  22  S.  W.  Rep.  668;  Newcome  v.  Light,  5S  Tex.  141  —  44 
Am.  Rep.  604;  Hall  v.  Thayer,  105  Mass.  219  —  7  Am.  Rep.  513;  Burks 
v.  Bennett,  62  Tex.  277;  Oakley  v.  Aspinwall,  3  N.  Y.  547;  Tn  re  Manu- 
facturing Co.,  77  N.  Y.  101;  In  re  Ryers,  72  N.  Y.  1.) 

Thus,  where  the  statute  prohibited  a  town  from  institut- 
ing a  suit  before  a  justice  residing  therein,  the  judgment 
was  held  void  because  the  justice  was  without  authority  to 
act. 

(Heagle  v.  Wheeland,  64  111.  423.) 

So  in  Connecticut,  where  there  is  a  statutory  inhibition 
against  any  person  acting  as  a  justice  in  any  civil  action 
wherein  the  writ  or  declaration  had  been  filled  up  by  any 
person  occupying  the  same  office  with  him,  unless  in  case  of 
an  express  waiver  of  the  disqualification  in  writing  by  the 
defendant,  there  was  no  waiver,  and  notwithstanding  the 
defendant  was  fully  cognizant  of  the  facts,  he  went  to  trial 
without  urging  objections  to  the  jurisdiction  and  the  judg- 
ment was  held  to  be  void. 

(Keeler  v.  Stead,  56  Conn.  501  —  16  Atl.  Rep.  552.) 


138  TOID   JUDICIAL    AXD    EXECUTION    SALES. 

The  statutory  inhibition  is  enforced  to  the  extent  that 
under  such  circumstances  the  office  is  considered  vacant  in 
a  judicial  sense,  and  the  acts  performed  in  violation  of  the 
provision  are  devoid  of  judicial  sanction  and  nullities.  The 
rule  at  common  law  where  such  acts  were  considered  voidable 
merely  has  thus  been  radically  modified.  At  common  law  the 
acts  and  proceedings  of  a  disqualified  judge  were  considered 
in  the  light  of  errors  or  irregularities  available  on  appeal,  but 
not  of  sufficient  gravity  to  render  them  void  at  law. 

(Findlcy  v.  Smith,  42  W.  Va.  299  —  26  S.  E.  Rep.  370.) 


LOSS,  EXCESS  AXD  SUSPEXSIOX  OF  JUEIS- 
DICTIOX. 

Jurisdiction  Generally  Continues  until  Judgment. 

§  140.  As  a  general  rule  when  jurisdiction  has  once  been 
conferred  it  will  continue  until  the  final  determination  and 
disposition  of  the  questions  and  issues  involved  in  the  contro- 
versy. Therefore,  when  jurisdiction  of  the  defendant  has 
once  been  fully  acquired,  it  is  not  exhausted  until  the  judg- 
ment of  the  court  is  satisfied. 

(Barton  v.  Sanders,  16  Ore.  51  —  16  Pac.  Rep.  921;  Dorr  v.  Rohr,  82 
Va.  359  —  3  Am.  St.  Rep.  106.) 

Lost  by  Appeal  or  Removal. 

§  111.  The  rule  that  jurisdiction  when  once  acquired  con- 
tinues until  final  judgment  is  however  not  an  inexorable 
one,  and  circumstances  may  happen  by  which  the  court  may 
lose  the  jurisdiction  which  theretofore  had  been  conferred 
upon  or  acquired  by  it  in  the  cause,  whereupon  its  power  to  far- 
ther proceed  in  the  case  is  unconditionally  terminated.  Hence, 
npon  the  perfection  of  a  valid  appeal  the  court  from  which  the 
appeal  was  taken  is  ousted  of  jurisdiction,  and  by  the  removal 
of  the  ease  from  the  state  to  the  federal  court  a  similar  effect 
is  produced  on  the  former  court,  and  its  subsequent  action 
in  the  case  is  unwarranted. 

(Brady  v.  Burk,  90  Cal.  1  —  27  Pac.  Rep.  52;  Steamship  Co.  v.  Tup- 
man,  106  U.  S.  US  — 1  Slip.  Ct.  Rep.  58;  Railroad  Co.  v.  Koontz,  104 
U.  S.  1):  McKinney  v.  Jones,  57  Wis.  301  —  15  X.  W.  Pep.  160;  Me- 
Arthur  v.  Dane,  61  Ala.  539;  Poynton  v.  Foster,  7  Met.  415.) 


LOSS,  EXCESS  AXD  SUSPENSION  OF  JURISDICTION.  139 

Lost  During  Intervals  between  Regular  Terms. 

§  142.  Where  regular  terms  of  court  for  the  trial  of  causes 
are  by  statute  required  to  be  held  at  stated  times,  in  the 
interim  between  such  terms,  the  court  has  no  authority  to 
try  such  causes  as  may  be  pending  therein,  as  its  powers  are 
suspended  during  the  intervals  between  terms,  to  the  same 
extent  as  if  its  authority  over  the  case  were  entirely  withdrawn, 
and  it  was  in  fact  no  longer  a  court  for  the  purpose  of  the 
trial.  Jurisdiction  can  not  be  conferred  upon  it  during  such 
time  even  by  the  consent  of  parties,  and  any  judgment  it 
may  render  is  wholly  void. 

(Bank  v.  Neel,  53  Ark.  110  —  13  S.  W.  Rep.  700;  Kinports  v.  Rawson, 
20  W.  Va.  4S7  —  2  S.  E.  Rep.  85;  Laughlin  v.  Peckham.  66  Iowa,  121  — 
23  N.  W.  Rep.  294;  Balm  v.  Nunn,  63  Iowa,  641  —  19  N.  W.  Rep.  810; 
King  v.  Green,  2  Stew.  133  — 19  Am.  Dec.  46;  Davis  v.  Fish,  1  G. 
Greene,  406  —  48  Am.  Dec.  387;  Bruce  v.  Doolittle,  SI  111.  103;  Norwood 
v.  Kenfield.  34  Cal.  329;  Wicks  v.  Ludwick,  9  Cal.  173;  Campbell  v. 
Chandler,  37  Tex.  32;  Garlick  v.  Dunn.  42  Ala.  404;  Galusha  v.  Butter- 
field,  2  Scam.  227;  Earl  v.  Earl,  27  Kan.  538;  Francis  v.  Wells,  4  Colo. 
274;  Marshall  v.  Ravisies,  22  Fla.  583;  Hernandez  v.  James,  23  La.  Ann. 
483.) 

So,  if  a  judicial  district  contains  two  or  more  counties, 
and  a  term  of  court  has  been  commenced  in  one  of  the  coun- 
ties, a  cause  can  not  be  tried  in  another  county  at  the  same 
time.  Not  even  the  stipulation  of  the  parties  can  impart 
validity  to  such  a  proceeding. 
(Bates  v.  Gage,  40  Cal.  183.) 

Non-attendance  of  Judge. 

§  143.  The  non-attendance  of  a  judge  at  the  time  fixed  by 
law  for  the  commencement  of  a  term  of  court  causes  a  lapse 
and  loss  of  the  term,  although  an  attempted  and  unwarranted 
adjournment  was  made  by  the  clerk,  and  all  proceedings  at 
such  adjourned  term  are  void,  the  presence  of  the  judge  at 
the  time  appointed  by  law  for  opening  the  term  of  court  is 
absolutely  indispensable  to  the  validity  of  subsequent  pro- 
ceedings. 

(In  re  McCla^ky.  52  Kan.  34  —  34  Pac.  Rep.  459;  Insurance  Co.  v. 
Pappe,  43  Pac.  Rep.  1085;  Wilson  v.  State,  35  S.  W.  Rep.  390;  Hobart 
v.  Hobart,  45  Iowa,  503.) 


140  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

Court  Sitting  Outside  of  County. 

§  144.  In  Iowa  it  is  held  that  a  circuit  court  of  a  particular 
county  can  not  sit  outside  of  such  county,  and  any  order 
made  or  judicial  act  done  while  sitting  outside  of  such  county 
is  void.  But  in  Missouri  and  Ohio,  where  this  question  has 
been  judicially  determined,  a  contrary  conclusion  has  been 
reached,  and  the  inference  drawn  from  the  adjudications  in 
these  states  abundantly  support  the  contention  that  such  acts 
are  not  void  collaterally.  Indeed,  that  courts,  when  neces- 
sary, may  hold  their  sessions  and  pronounce  judgment  at 
different  places,  in  the  same  state,  than  those  designated  by 
law.  ( 

(Casey  V.  Stewart,  60  Iowa.  160  —  14  X.  W.  Rep.  325:  Hemdon  v. 
Hawkins,  65  Mo.  265;  Le  Grange  v.  Ward,  11  Ohio,  257.) 

Jurisdiction  Exhausted  over  Subject-matter. 

§  145.  If  during  the  proceedings  in  a  particular  cause 
the  jurisdiction  over  the  subject-matter  has  been  completely 
exhausted,  it  also  exhausts  that  of  every  other  court  having 
concurrent  jurisdiction  over  the  same  subject-matter.  Thus, 
the  jurisdiction  of  the  probate  court  is  exhausted  by  the 
consummation  of  a  valid  sale  of  land  under  the  order  of  the 
court,  the  ownership  thereof  being  thereafter  vested  in  the 
purchaser.  Manifestly  if  the  same  land  be  subsequently 
again  sold  under  the  judgment  of  another  court  also  having 
probate  jurisdiction,  in  the  same  estate,  and  as  the  property 
of  the  estate,  whether  the  purchaser  at  such  second  sale  be  a 
bona  fide  or  a  male  fide  purchaser,  the  sale  is  absolutely  void 
because  the  jurisdiction  over  the  land  was  completely  ex- 
hausted at  the  first  sale,  and  in  making  the  second  sale  the 
court  transcended  its  authority  by  the  unwarranted  assump- 
tion of  authority  over  the  property  of  another  person. 

(Unsay  v.  Jaffray.  55  Tex.  626;  Smith  v.  Woolfolk,  115  TJ.  S.  143  — 
5  Snp.   Ct.   Rep.   1177.) 

Judgment  beyond  the  Issues. 

§  146.  If  the  relief  granted  be  such  as  is  not  within  the 
power  of  the  court  to  grant,  to  the  extent  at  least  that  the 
authority  has  been  exceeded,  the  judgment  is  unquestionably 
void  npon  the  plainest  of  elementary  and  fundamental  prin- 
ciples. 


LOSS,  EXCESS  AND  SUSPEXSIOX  OF  JURISDICTION'.  141 

(Beach  v.  Atkinson,  87  Ga.  2SS  — 13  S.  E.  Rep.  591;  McFadden  v. 
Whitney,  51  N.  J.  L.  391  —  18  Atl.  Eep.  62;  Bunch  v.  Spotts,  57  Ark. 
257  —  21  S.  W.  Rep.  437;  Bishop  v.  Freeman,  42  Mich.  533  —  4  X.  W. 
Rep.  290;   Bridges  v.  Supervisors,  57  Miss.  252.) 

Therefore,  a  judgment  or  decree  in  effect  foreign  to  the 
issues  or  matter  involved  in  the  legal  controversy  is  mani- 
festly without  legal  effect  for  excess  of  jurisdiction,  and 
nowhere  entitled  to  the  least  respect  or  consideration  as  a 
judicial  sentence. 

(Reynolds  v.  Stockton,  43  N.  J.  Eq.  211  —  10  Atl.  Rep.  385;  Jones  v. 
Davenport,  45  X.  J.  Eq.  77  — 17  Atl.  Rep.  570;  Mundy  v.  Vail,  5  Vrcom, 
418;  Gille  v.  Emmons,  58  Kan.  118  —  48  Pae.  Rep.  569;  Falls  v.  Wright, 
55  Ark.  562  —  18  S.  W.  Rep.   1044.) 

But  it  has  been  held  that  where  a  judgment  is  rendered  in 
excess  of  the  amount  demanded,  it  is  erroneous  only,  and 
not  susceptible  of  collateral  impeachment  for  that  reason. 

(Gillett  v.  Truax,  27  Minn.  528  —  8  N.  W.  Rep.  767;  Chaffee  v.  Hooper, 
54  Vt.   513.) 

That  a  decree  rendered  in  excess  of  jurisdiction  to  the 
extent  of  determining  a  matter  not  in  issue,  and  neither 
directly  nor  indirectly  involved  in  the  controversy,  is  void 
and  subject  to  collateral  attack,  is  a  proposition  settled  be- 
yond the  peradventure  of  a  doubt.  So  where  suit  was 
instituted  by  a  widow  for  the  assignment  of  dower  in  the 
lands  of  her  deceased  husband,  and  all  interested  parties  were 
made  defendants,  and  in  the  judgment  thus  rendered  it  was 
directed  not  only  as  to  the  assignment  of  dower,  but  also 
directed,  without  suggestion,  that  a  sale  be  made  of  the  re- 
maining lands  of  the  estate,  the  decree  of  sale  is  void  for 
having  been  rendered  in  excess  of  jurisdiction,  and  may  be 
called  in  question  in  a  collateral  proceeding. 

(Seamster  v.  Blackstock,  S3  Va.  232  —  2  S.  E.  Rep.  36.) 

And  so  on  similar  principles  a  money  judgment  rendered 
against  the  surety  of  a  defaulting  purchaser  at  a  judicial 
sale,  upon  a  rule  against  such  purchaser  and  surety,  is  against 
every  sound  principle  of  jurisprudence,  extra-judicial  and 
void. 

(Anthony  v.  Kasey,  83  Va.  338  —  5  S.  E.  Rep.  176.) 


142  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

Justice  of  the  Feace  Absent  on  Day  of  Trial. 

§  147.  In  Kansas  it  is  held  that  where  the  justice  was 
absent  on  the  day  set  for  trial,  his  subsequent  action  in  the 
cause  is  coram  non  judice  and  void,  because  he  lost  juris- 
diction of  the  case  by  reason  of  his  absence.  This  is  the  gen- 
eral rule  in  this  regard. 

(Olson  v.  Xunnally.  47  Kan.  391  —  28  Pac.  Rep.  149.) 

Other  Fatalities  in  Justice's  Proceedings. 

§  148.  In  Wisconsin  it  is  held  that  when  a  justice  of  the 
peace  fails  to  enter  in  his  docket  the  time  when  and  place 
where  a  cause  pending  before  him  is  continued,  his  jurisdic- 
tion ceases  and  his  subsequent  acts,  in  the  absence  of  a  volun 
tary  appearance  after  the  continuance,  are  void. 

(Witt  v.  Henze.  58  Wis.  244  —  16  X.  W.  Rep.  609;  Brahmstead  v. 
Ward,  44  Wis.  591.) 

If  the  entries  in  the  judgment  docket  of  a  justice  of  the 
peace  show  that  a  judgment  was  entered  on  a  day  on  which 
he  was  not  within  the  state,  it  has  been  decided  that  the 
judgment  was  void  for  want  of  jurisdiction. 

(Toliver  v.  Brownell,  94  Mich.  577  —  54  X.  W.  Rep.  302.) 

By  statute  a  judgment  on  a  verdict  in  a  justice's  court,  in 
favor  of  either  party,  shall  be  forthwith  entered,  but  the 
judgment  was  not  entered  until  fourteen  hours  after  the 
verdict  was  received,  though  on  the  same  day,  and  the  judg- 
ment was  decided  to  be  void. 

(Hull  v.  Mallory,  56  Wis.  355  —  14  X.  W.  Rep.  374:  Smith  v.  Rahr, 
62  Wis.  244  —  22  X.  W.  Rep.  438.) 

And  where  the  word  "  forthwith  "  in  this  regard  is  con- 
strued to  mean  within  a  reasonable  time,  a  judgment  in  a 
justice's  court  entered  ninety  days  after  the  return  of  the 
verdict  is  void  for  loss  of  jurisdiction. 

(Tomlinson  v.  Fitze,  82  Iowa,  32  —  47  X.  W.  Rep.  1015.) 

EFFECT   OF  WA!NTT   OF   JUKISDICTIOX 

Makes  the  Judgment  and  Froceedings  Void. 

§  140.  As  a  matter  of  neeo^ity.  a  judgment,  order  or 
dor-roe,  wherever  and  whenever  rendered,  which  is  void  ia  no 
more  effective,  in  contemplation  of  law,  than  if  it  were  non- 


EFFECT  OF  WANT  OF  JURISDICTION.  143 

•existent.  The  conclusion  is  then  inevitable  that  wnatever 
proceedings  have  been  had  thereunder,  as  well  as  all  pre- 
tended rights  founded  thereon,  are  equally  with  the  judgment 
unalterably  void.  As  water  can  rise  no  higher  than  its 
source,  so  claims  founded  upon  a  void  judgment  are  also 
void.  Hence,  a  sale  based  upon  such  a  judgment  is  without 
warrant  in  law  and  nugatory, 

(Barber  v.  Morris,  37  Minn.  194  —  33  N.  W.  Rep.  559;  White  v.  Foote 
Lumber  Co.,  29  W.  Va.  385  —  1  S.  E.  Rep.  572;  Railway  Co.  v.  Summers, 
113  Ind.  10  —  14  N.  E.  Rep.  733;  Paul  v.  Willis,  69  Tex.  261  —  7  S.  VV. 
Rep.  357;  Cattle  Co.  v.  Boon,  73  Tex.  548  —  11  S.  W.  Rep.  544;  Winn 
v.  Strickland,  34  Fla.  610  —  16  So.  Rep.  606.) 

It  is  an  unalterable  rule  that  a  judgment  rendered  by  a 
judicial  tribunal  where  there  is  a  want  of  jurisdiction  over 
the  subject-matter  or  of  the  person  of  the  defendant  is  an 
absolute  nullity.  In  form  it  may  be  a  judgment  but  in,  sub- 
stance and  reality  not,  Its  apparent  mandates  are  incapable  of 
enforcement,  and  it  is  no  protection  to  him  who  geeks  to*  en- 
force it  under  process  emanating  therefrom,  for  it  is  wholly 
unavailable  for  any  purpose,  neither  binding  nor  barring  any 
one. 

(Moyer  v.  Buck.  2  Ind.  App.  571  —  2S  N.  E.  Rep.  992;  Furgeson  V. 
Jones,  17  Ore.  204  —  20  Pac.  Rep.  842;  Briekhouse  v.  Sutton,  99  N.  C. 
103  —  5  S.  E.  Rep.  380;  Wall  v.  Wall,  123  Pa.  St.  545  —  16  Atl.  Rep. 
598]  Fiankel  v.  Satterfield,  9  Hcust.  201  —  19  Atl.  Rep.  SOS;  Ex  parte 
Sawyer,  124  U.  S.  200  —  8  Sup.  Ct.  Rep.  482;  Bigelow  v.  Stearns.  19 
Johns.  39  —  10  Am.  Dec.  189.) 

Accordingly,  if  the  judgment  is  void  upon  its  face  because 
want  of  jurisdiction  is  apparent  therefrom,  it  as  well  as  any 
sale  or  proceeding  thereunder,  may  be  impeached  not  only 
directly  but  also  collaterally. 

(Wilkinson  v.  Schoonmaker,  77  Tex.  615  —  14  S.  W.  Rep.  223;  Hardy 
v.  Beaty,  84  Tex.  562  —  19  S.  W.  Rep.  778;  Adams  v.  Cowles,  95  Mo. 
501  — 8  S.  W.  Rep.  711;  Horton  v.  Howard.  79  Mich.  (542  —  44  N.  W. 
Rep.  1112;  Halm  v.  Kelly,  34  Cal.  391  —  94  Am.  Dec.  742.) 

Administration  on  Estates  of  Living  Persons. 

§  150.  Jurisdiction  being  indispensable  to  a  valid  judicial 
proceeding,  if  the  steps  to  invoke  the  jurisdiction  are  radi- 
cally defective,  subsequent  proceedings,  though  regular,  are 
nevertheless  void  because  of  such  radical  infirmity,     It  is 


144  VOID   JUDICIAL    AND    EXECUTION    SALES. 

thus  that  an  administrator's  sale  of  land  of  a  living  owner  is 
nugatory,  notwithstanding  the  proceedings  to  obtain  the 
order  of  sale  and  all  subsequent  steps  were  regular,  tiie 
death  of  the  owner  being  a  necessary  fact  without  which  the 
court  can  not  acquire  jurisdiction  to  act.  A  similar  result 
would  follow  if  the  grant  of  administration  was  void  for 
other  reasons.  It  is  held  that  in  cases  of  administration  upon 
the  estates  of  deceased  persons  the  jurisdiction  depends  not 
cnly  upon  the  allegation  but  also  upon  the  actual  fact  of  the 
death  of  the  alleged  decedent.  The  order  appointing  an 
administrator  is  not  conclusive  upon  collateral  inquiry  in 
respect  to  the  death  of  the  alleged  decedent. 

(Scott  v.  McNeal,  154  U.  S.  34  —  14  Sup.  Ct.  Rep.  1108;  Springer  v. 
Shavender,  118  N.  C.  33  —  23  S.  E.  Rep.  976;  Melia  v.  Simmons,  45  Wis. 
334  —  30  Am.  Rep.  746;  Thomas  v.  People.  107  111.  517  —  47  Am.  Rep. 
458;  Johnson  v.  Beasley,  65  Mo.  250 — 27  Am.  Rep.  276:  Morgan  v. 
Bodge,  44  N.  H.  255  —  82  Am.  Dec.  213;  Andrews  v.  Avery.  14  Gratt. 
229  —  73  Am.  Dec.  355;  DArusement  v.  Jones,  4  Lea,  251  —  40  Am. 
Rep.  12;  Duncan  v.  Stewart,  25  Ala.  408  —  60  Am.  Dec.  527:  Withers 
V.  Patterson,   27  Tex.  491  —  86  Am.  Dec.  643.) 

If  the  legal  heirs  of  a  person,  under  a  misapprehension  of 
the  true  facts,  admit  the  averment  of  the  death  of  their  an- 
cestor, and  submit  to  a  decree  of  sale  of  his  lands,  notwith- 
standing such  admission  they  will  be  permitted  to  avoid  the 
title,  seemingly  acquired  through  a  probate  sale,  in  a  col- 
lateral assault  because  of  the  fact  that  such  ancestor  was  in 
fact  living.  If  the  owner  was  not  dead  the  court  could  not  be 
invested  with  jurisdiction  over  his  estate  by  consent  of  his 
heirs  or  by  any  other  means  whatever,  for  his  death  is  an 
essential  jurisdictional  fact.  To  stipulate  that  he  was  dead 
when  in  fact  he  was  not,  or  for  the  court  to  find  that  he  is 
dead  when  actually  living,  and  appropriate  his  property  by 
administering  thereon,  would  be  in  violation  of  the  consti- 
tutional guaranty  of  due  process  of  law. 

(Springer  v.  Shavender,  116  K  C.  12  —  21  S.  E.  Rep.  397;  Springer  v. 
Shavender,  US  X.  C.  33  —  23  S.  E.  Rep.  976.) 

Judicial  Authority  Can  not  be  Delegated. 

§  151.  Judicial  authority  is  not  susceptible  of  being  dele- 
gated to  another  so  as  to  clothe  him  with  power  to  act  in  a 
judicial  capacity.     Accordingly,  where  a  petition  was  pre- 


EFFECT  OF  WANT  OF  JURISDICTION.  145 

sented  to  the  clerk  of  a  court  of  probate  praying  for  the  ap- 
pointment of  an  administrator,  and  the  clerk  used  blank 
letters  previously  signed  by  the  judge  of  probate,  filling  up 
the  same  and  attaching  the  seal  of  the  court  thereto,  the 
judge  never  having  had  knowledge  of  nor  took  any  action 
upon  such  letters,  the  acts  of  the  clerk  were  not  judicial,  and 
the  apparent  appointment  was  held  to  be  absolutely  void, 
because  the  result  of  a  usurpation  of  power. 

(Roderigas  v.   Bank,   76  N.  Y.   316-32   Am.   Rep.    309;    Young  v. 
Rathbone,  16  X.  J.  Eq.  224-84  Am.  Dec.  151.) 

Face  of  Record  showing  a  Want  of  Jurisdiction. 

§  152.  The  face  of  the  record  showing  affirmatively  that 
the  court  was  without  jurisdiction,  the  judgment  and  subse- 
quent proceedings  founded  thereon  are  void  upon  a  collateral 
assault  upon  them.  Thus  where  a  personal  judgment  for 
money  was  rendered  upon  constructive  service  of  process 
onlv  in  a  case  not  authorized  by  law,  it  is  in  effect  a  judg- 
ment without  notice,  and  manifestly  nugatory,  upon  the  very 
elementary  principles  upon  which  our  system  of  jurispru- 
dence is  founded. 

(Mover  v.  Bucks,  2  Ind.  ApP.  571-28  N.  E.  Rep.  992.) 

And  so  a  sale  under  execution  emanating  from  a  judgment 
for  money  rendered  upon  constructive  service  of  summons  by 
publication,  or  upon  the  service  of  summons  personally  upon 
defendant  outside  of  the  state,  the  record  not  disclosing  the 
attachment  of  property,  is  void  for  want  of  jurisdiction  and 
may  be  overthrown  collaterally.  And  where  there  was  prop- 
erty attached,  the  jurisdiction  is  limited  to  such  property, 
and  a  money  judgment  for  a  sum  in  excess  of  the  value  of  the 

same  is  void. 

(Griffith  v.  Harvester  Co.,  92  Iowa,  634  -  61  N.  W.  Rep.  243 ;  Real  Es- 
tate Co.  v.  Hendrix,  28  Ore.  485  -  42  Pac.  Rep.  514;  Hardy  v.  Beaty,  84 
Tex  562-19  S.  W.  Rep.  778;  Ranier  v.  Hurlbut,  81  Wis.  24-  50  J*.  W. 
Rep.  783;  Freeman  v.  Alderson,  119  U.  S.  185-7  Sup.  Ct.  Rep  165; 
Foote  v.  Sewall,  81  Tex.  659-17  S.  W.  Rep.  373;  Smith  v.  Griffin,  59 
Iowa  409  —  13  N.  W.  Rep.  423;  Brown  v.  Campbell,  100  Cal.  63d  — 35 
Pac  Rep-  433;  Blanc  v.  Mining  Co..  95  Cal.  524-30  Pac.  Rep.  705; 
Anderson  v.  Goff,  72  Cal.  65-13  Pac.  Rep.  73;  Pennoyer  v.  Neff,  95 
U.  S.  714.) 

10 


146  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

Only  Fart  of  Defendants  Summoned. 

§  153.  Jurisdiction  being  therefore  a  requirement  of  para- 
mount importance  to  a  valid  and  binding  judgment,  if  only 
a  part  of  the  tenants  in  common  in  a  suit  in  partition  of  real 
estate  are  brought  in  by  service  of  process,  either  actual  or 
constructive,  the  judgment  and  sale  are  void  as  against  such 
as  were  not  made  parties  nor  served  with  process,  whether 
they  be  adults  or  minors, 

(Terrell  v.  Weymouth,  32  Fla.  255  —  13  So.  Rep.  429:  Jones  v.  Napier, 
93  Ga.  582  —  20  S.  E.  Rep.  41;  McDermott  v.  Thompson.  29  Fla.  299  — 
10  So.  Rep.  584;   Childs  v.  Hayman,  72  Ga.  791.) 

though  the  order  of  sale  and  sale  as  to  the  parties  served  are 
valid  pursuant  to  the  weight  of  authority; 

(Swift  v.  Yanaway,  153  111.  197  —  38  N.  E.  Rep  589;  Stark  v.  Carroll, 
66  Tex.  393  —  1  S.  W.  Rep.  1S8;  Botsford  v.  O'Connor,  57  111.  72;  Har- 
ris v.  Lester,  80  111.  307.) 

diametrically  opposed  to  this  rule  is  the  contention  that  a  de- 
cree void  as  to  one  for  want  of  jurisdiction  is  void  as  to  all. 
(Martin  v.  Williams,  42  Miss.  210  —  97  Am.  Dec.   456;   Hamilton,  v. 
Lockhart,  41  Miss.  460.) 

However,  this  doctrine  has  been  modified  in  Mississippi  so 
as  to  apply  to  probate  proceedings  only,  and  with  this  ex- 
ception the  general  rule  in  chancery  practice  is  followed. 
(Rule  v.  Broach,  58  Miss.  552;  Moody  v.  McDuif,  5S  Miss.  751.) 

Because  Debt  Barred  by  Statute  of  Limitations. 

§  154.  On  principle  it  is  difficult  to  see  why  an  order 
directing  an  administrator  to  sell  lands  of  an  estate  to  pay  a 
claim  barred  by  the  statute  of  limitations  should  be  consid- 
ered void,  yet  there  is  authority  to  this  effect,  wherein  con- 
tention is  based  upon  the  proposition  that  the  court  had  no 
jurisdiction  to  grant  the  license  because  the  estate  was  not 
bound  by  a  debt  barred  by  the  statute  of  limitations. 

(Smith  v.  Wildman,  178  Pa.  St.  245  —  35  Atl.  Rep.  1047;  Canipau  v. 
Gillett,  1  Mich.  416  —  53  Am.  Dec.  73;  Heath  v.  Wells,  5  Pick.  139  — 
16  Am.  Dec.  383;  Estate  of  Godfrey,  4  Mich.  314;  Thayer  v.  Winchester, 
133  Mass.  447;  Pry's  Appeal,  8  Watts,  253;  Tarbell  v.  Parker,  106  Mass. 
347;  Hoffman  v.  Baird,  32  Mich.  218;  Thompson  v.  Brown,  16  Mass.  172; 
Brindley's  Appeal,  69  Pa.  St,  295.) 


SALES    IN    PKI  :     LANDS    OF   A    DECEDENT.  147 

But  in  Missouri,  Texas,  Florida,  New  Hampshire  and  sev- 
eral other  states  a  contrary  rule  obtains,  more  consonant  with 
reason  and  principle. 

(Barnes  v.  Scott,  29  Fla.  285  —  11  So.  Rep.  48;  Hall  v.  Woodman,  49 
N.  H.  295;  Deans  v.  Wilcox,  25  Fla.  980  —  7  So.  Rep.  163:  Postlewaite 
v.  Ghiselin,  97  Mo.  420  —  10  S.  W.  Rep.  482;  Giddings  v.  Steele,  28  Tex. 
733  —  91  Am.   Dec.  336.) 

NATUKE  OF  SALES  IN  PROBATE  OF  LANDS  OF 
A  DECEDENT. 

Fundamental  Fact  is  Death  of  Owner. 

§  155.  The  elementary  and  fundamental  fact  upon  which 
the  jurisdiction  in  probate  proceedings  in  administration 
upon  the  estates  of  decedents  rests  is  the  actual  death  of  the 
owner  of  the  estate  over  which  such  administration  is  sought 
to  be  obtained.  Manifestly,  the  administration  of  a  living 
man's  estate  is  a  legal  anomaly  wholly  incompatible  with 
sense  or  reason.  Consequently  the  fact  of  death  of  the  owner 
is  not  merely  a  question  of  proof  or  judicial  determination 
in  the  ordinary  acceptance  of  those  terms,  but  it  is  the  juris- 
dictional fact  which  must  be  true,  and  which,  if  untrue, 
though  found  by  the  court  to  be  true,  is  sufficient  to  make  the 
whole  proceeding  void,  the  finding  of  the  court  to  the  con- 
trary notwithstanding.  The  fact  of  death  is  then  really  the 
very  subject-matter  of  jurisdiction,  and  its  non-existence  is 
a  fatal  infirmity. 

(Springer  v.  Shavender,  118  N.  C.  33  —  23  S.  E.  Rep.  976;  Scott  v. 
McNeal,  154  U.  S.  34  —  14  Sup.  Ct.  Rep.  1108;  Melia  v.  Simmons,  45 
Wis.  334  —  30  Am.  Eep.  746;  Devlin  v.  Commonwealth,  101  Pa.  St.  273 
—  47  Am.  Rep.  710;  Johnson  v.  Beasley,  65  Mo.  250  —  27  Am.  Rep.  226.) 

Proceedings  in  rem. 

§  156.  Two  views,  the  one  diametrically  opposite  to  the 
other,  are  advanced  in  regard  to  the  nature  of  proceedings  by 
an  administrator  in  selling  the  lands  of  a  decedent.  Upon 
the  one  hand  such  proceedings  are  considered  to  be  in  rem, 
and  a  failure  to  give  the  notice  of  the  application  for  the 
order  of  sale  or  the  bond  is  but  an  irregularity  which  does 
not  render  the  proceedings  void  upon  a  collateral  assault, 
because  jurisdiction  has  already  attached  by  virtue  of  the 
grant  of  administration  and  the  filing  of  the  petition  em- 


14S  VOID    JUDICIAL    AND    EXECUTION    SALES. 

bodying  the  statutory  grounds  authorizing  a  sale  and  praying- 
for  the  sale  of  specific  lands,  the  power  of  the  court  to  order 
the  sale  thereof  being  thereupon  absolute. 

The  validity  of  the  order  of  sale  in  so  far  as  a  collateral 
inquiry  is  concerned  can  therefore  never  be  dependent  upon 
the  giving  of  notice  of  the  application  for  such  order  of  sale 
to  interested  parties.  The  principle  that  sales  of  lands  of 
a  decedent  in  probate  are  proceedings  in  rem  has  become  a 
settled  rule  of  property  in  several  of  the  states  including 
Alabama,  Arkansas,  Texas,  Washington,  Louisiana  and 
Nebraska. 

(Cobb  v.  Garner,  105  Ala.  647  —  17  So.  Eep.  47;  Kent  V.  Mansel,  101 
Ala.  334  —  14  So.  Eep.  489;  Reese  v.  Noland,  99  Ala.  203  —  13  So.  Pep. 
677;  Goodwin  v.  Sims,  86  Ala.  102  —  5  So.  Rep.  587;  Lyons  v.  Hamner, 
S4  Ala.  197  —  4  So.  Rep.  26;  Cantelou  v.  Whitley,  85  Ala.  247  —  4  So. 
Rep.  610;  Satcher  v.  Satcher,  41  Ala.  26  —  91  Am.  Dec.  40S;  Apel  v. 
Kelsey,  52  Ark.  341  —  12  S.  W.  Rep.  703 ;  Apel  v.  Kelsey,  47  Ark.  413  — 
2  S.  W.  Rep.  102;  Lyne  v.  Sanford,  82  Tex.  58  —  19  S.  W.  Rep.  847; 
Lynch  v.  Baxter,  4  Tex.  431  —  51  Am.  Dec.  735;  Heath  v.  Laync,  62 
Tex.  6S6 ;  Furth  v.  Mortgage  Co.,  13  Wash.  73  —  42  Pae.  Rep.  523 ;  Hyde 
V.  Heller,  10  Wash.  586  —  39  Pac.  Rep.  249;  Ackerson  v.  Orchard,  7 
Wash.  377  —  34  Pac.  Rep.  1106;  Ryan  v.  Ferguson,  3  Wash.  356—28 
Pac.  Rep.  910;  Oriol  v.  Herndon,  38  La.  Ann.  759;  Heirs  of  Herriman, 
31  La.  Ann.  276;  Schroeder  v.  Wilcox,  39  Neb.  136  —  57  N.  W.  Rep. 
1031;  McClay  v.  Foxworthy,  18  Neb.  295  —  25  N.  W.  Rep.  86.) 

In  Iowa  the  court  in  a  recent  case  held  that  the  heir  was 
entitled  to  notice  of  the  pendency  of  the  petition  for  the 
order  of  sale,  but  considered  its  absence  in  the  light  of  an 
irregularity  merely. 

(Spurgin  v.  Bowers,   82  Iowa,   1S7  — 47  N.  W.  Rep.   1029.) 

Guardian's  Sales  Considered  both  Adversary  and  in  rem. 

§  157.  As  in  theory  of  law  a  guardian  represents  his  ward, 
and  acts  for  him,  the  proceedings  of  sale  by  a  guardian  of  a 
ward's  lands  are  not  adversary  according  to  the  weight  of 
authority.  Therefore,  if  the  order  of  sale  is  obtained  in  the 
absence  of  all  notice,  or  upon  defective  or  insufficient  notice, 
it  is  not  void,  for,  being  in  the  nature  of  a  proceeding  in  n  m, 
no  notice  to  the  ward  is  necessary  to  the  validity  of  the  sale. 
The  petition  in  due  form  of  law  presented  by  the  guardian 
confers  jurisdiction  to  make  the  order  of  sale. 

rf   v    Aldrich,   97   Cal.   360-32   Pac.   Rep.   324;    Meyers   v.    Mc- 
Gavock,  39  Neb.  843  — 58. N.  W.  Rep.  522;  Thaw  v.  Ritchie,  136  U.  S. 


SALES  IN  FR0BATE  OF  LAXDS  OF  A  DECEDEXT.     149 

519  —  10  Sup.  Ct.  Rep.  1037;  Mohr  v.  Porter,  51  Wis.  4-7  — S  N.  W. 
Rep.  364;  Kendrick  v.  Wheeler,  85  Tex.  247  —  20  S.  W.  Rep.  44;  Mohr 
v.  Manierre,  101  U.  S.  417;  Gager  v.  Henry,  5  Sawyer,  237;  Smith  v. 
Race,  27  111.  387  —  81  Am.  Dec.  235;  Gibson  v.  Roll,  27  111.  88  —  81  Am. 
Dee.  219;  Mason  v.  Wait,  4  beam.  127;  Campbell  v.  Harmon,  43  111.  IS.) 

That  such  sales  are  adversary  and  not  in  rem,  and  there- 
fore notice  is  an  essential  requirement  to  vest  jurisdiction  is 
'  the  doctrine  contended  for  elsewhere,  though  without  appar- 
ent show  of  reason. 

(Kennedy  v.  Gaines,  51  Miss.  625;  In  re  Estate  of  Hunter,  84  Iowa, 
3SS— 51  X.   W.  Rep.   20.) 

Are  Adversary  Proceedings. 

§  158.  On  the  other  hand  it  is  contended  in  perhaps  a 
majority  of  the  states  that  an  administrator's  proceeding  to 
sell  lands  of  the  estate  of  a  decedent  is  not  in  the  nature  of 
a  proceeding  in  rein,  and  that  the  failure  to  give  the  notice 
required  by  the  statute  of  the  presentation  of  the  petition  for 
the  order  of  sale  is  a  fatal  defect  rendering  the  sale  made 
under  the  order  void.  In  these  states  the  proceedings  are 
considered  adversary  to  the  heirs  and  devisees,  and  unless  the 
parties  interested  in  the  estate  are  properly  brought  before 
the  court  according  to  the  manner  directed  in  the  statute, 
there  is  such  a  want  of  jurisdiction  as  will  wholly  vitiate  the 
sale.  This  is  the  doctrine  promulgated  by  the  courts  in  at 
least  eleven  states,  among  them  being  Kansas,  Illinois,  Wis- 
consin, South  Carolina,  Oregon,  Mississippi,  Xew  Hamp- 
shire, Tennessee,  ISTew  York,  ]STorth  Carolina  and  Indiana. 

(Railway  Co.  v.  Cook,  43  Kan.  S3  —  22  Pac.  Rep.  988;  Fell  v.  Young. 
63  111.  106;  Clark  v.  Thompson.  47  111.  25  —  95  Am.  Dec.  457 ; '  Botsford 
V.  O'Connor,  57  111.  72;  Gibbs  v.  Shaw.  17  Wis.  197  —  84  Am.  Dec.  7::7; 
O'Dell  v.  Rogers,  44  Wis.  136;  Blodgett  v.  Hitt,  29  Wis.  169;  Johnson 
v.  Cobb,  20  S.  C.  372  —  7  S.  E.  Rep.  601;  Fisk  v.  Kellogg,  3  Ore.  503; 
Root  v.  McFerrin,  37  Miss.  17  —  75  Am.  Dec.  49;  Joslin  v.  Caughlin,  26 
Miss.  134;  French  v.  Hoyt.  6  X.  II.  370  —  25  Am.  Dec.  464;  Merrill  v. 
Harris,  26  N.  H.  142 ;  Frazier  v.  Pankey,  1  Swan,  74 ;  Jenkins  v.  Young. 
35  Hun,  569;  Corwin  v.  Merritt,  3  Barb.  341;  Perry  v.  Adams.  9S  X.  C. 
167  —  3  S.  E.  Rep.  729;  Harrison  v.  Harrison,  106  N.  C.  282  —  11  S.  E. 
Rep.  356;  Hawkins  v.  Hawkins,  28  Ind.  66;  Doe  v.  Bowen,  6  Ind.  197; 
Doe  v.  Anderson,  5  Ind.  33.) 

The  death  of  the  decedent  furnishes  the  basis  for  the  juris- 
diction of  the  court  over  his  estate.     Under  the  statutes  of  a 


150  VOID    JUDICIAL    AND    EXECUTION    SALES. 

majority  of  the  states  the  real  estate  descends  to  the  heirs 
subject  however  to  a  trust  created  by  statue  for  the  pay- 
ment of  the  lawful  debts  duly  presented,  which  are  a  charge 
upon  the  estate,  the  heir  taking  by  inheritance  after  the 
charges  are  paid.  This  is  the  philosophy  upon  which  the 
probate  court  acquires  jurisdiction  through  its  functionary 
to  sell  or  sequestrate  the  lands  lying  within  its  territorial 
jurisdiction.  The  res  is  thus  fully  under  the  control  of  the 
court,  just  as  in  case  of  a  specific  lien,  and  the  proceedings 
are  considered  in  the  nature  of  proceedings  in  rem,  as  we 
have  seen,  in  several  of  the  states.  Even  in  those  states 
where  notice  of  the  pendency  of  the  petition  for  an  order  of 
sale  is  an  indispensable  requirement  to  confer  jurisdiction 
to  order  the  sale,  the  proceedings  are  still  somewdiat  in  the 
nature  of  a  sale  in  rem,  notwithstanding  they  are  regarded 
as  adversary. 

PKOBATE  SALES  WHEN  THERE  ARE  XO  DEBTS. 

Adjudication  of  the  Court  is  Conclusive. 

§  159.  According  to  the  decided  preponderance  of  au- 
thority a  sale  of  land  by  an  administrator  to  pay  debts  of  the 
decedent  when  in  fact  there  were  no  debts,  is  not  void  for 
that  reason  alone.  The  principle  upon  which  these  cases  are 
founded  is,  that  when  a  proper  petition  to  sell  has  been  pre- 
sented and  properly  brought  on  for  hearing,  the  adjudica- 
tion and  determination  of  the  court  upon  it  that  there  are 
debts  imports  verity.  The  court  being  invested  with  juris- 
diction of  the  estate,  the  sale  is  not  open  to  be  attacked  col- 
laterally for  irregularities,  omissions  or  errors  in  the  proceed- 
ings culminating  in  the  order  of  sale.  Consequently,  a  pur- 
chaser at  a  probate  sale  has  only  to  look  to  the  jurisdiction  of 
the  court  granting  the  order  of  sale,  which  order  is  to  be  re- 
ceived as  conclusive,  is  unimpeachable  from  within  though 
impeachable  from  without. 

(Murphy  v.  De  France.  105  Mo.  53  —  15  S.  W.  Rep.  949;  Curran  v. 
Kuby,  37  Minn.  330  —  33  N.  W.  Rep.  907;  Succession  of  Thez,  44  La. 
Ann.  47  —  10  So.  Rep.  412;  Deyton  v.  Bell,  81  Ga.  370  —  S  S.  E.  Rep. 
620;  Merrill  v.  Earris,  20  X.  H.  142  —  57  Am.  Dee.  359;  McNally  v. 
Haynes.  59  Tex.  583;  Bowen  v.  Bond.  80  111.  351;  McCauley  v.  Harvey, 
49  Cal.  497;  Stow  v.  Kimball,  28  111.  93.) 


EFFECT  OF  FAILURE   TO  APPOINT   GUAEDIAX    AD  LITEM.   151 

In  a  recent  case  in  Alabama  the  court  in  this  regard  said : 
«  In  the  absence  of  fraud  or  collusion,  the  judicial  determi- 
nation by  the  probate  court,  that  there  were  debts  against  the 
estate  and  that  the  sale  of  the  land  was  necessary,  is  con- 
clusive upon  all  who  were  parties  to  that  proceeding,  and 
conclusive  upon  the  chancery  or  other  court,  in  any  collateral 
suit  or  proceeding,  so  far  as  the  rights  of  bona  fide  pur- 
chasers of  the  land  at  the  sale  had  in  pursuance  of  the  de- 
cree are  concerned  ". 

(Cobb  v.  Garner,  105  Ala.  407-17  So.  Rep.  47.) 

Finding  of  Probate  Court  only  Prima  Facie. 

§  160.  In  Connecticut  it  seems  to  be  the  rule  that  the  find- 
ing of  the  probate  court  upon  an  application  for  the  sale  of 
lands  of  an  estate  that  there  are  debts  is  but  prima  fane 
evidence  of  the  fact  that  there  are  debts.  If  one  claims 
lands  by  virtue  of  a  probate  sale  to  pay  debts  of  the  decedent, 
he  must  establish  the  fact  that  such  debts  actually  existed, 
when  his  title  is  called  in  question  upon  allegations  chat 
there  were  no  debts.  While  the  finding  that  there  were  debts 
is  prima  facie  evidence  it  is  nevertheless  open  to  contra- 
diction. 

(Shelton  v.  Hadlock,  62  Conn.  143-25  Atl.  Rep.  433;  Sears  v.  Terry, 
26  Conn.   273.) 

EFFECT  OF  FAILURE  TO  APPOINT  GUARDIAN 
AD   LITEM. 

Generally  Considered  but  an  Irregularity. 

§  161.  The  authorities  are  conflicting  upon  the  question 
as  to  what  the  consequences  are  of  a  failure  to  appoint  a 
o-uardian  ad  litem  for  an  infant  when  his  estate  is  involve.]. 
Upon  the  one  hand  it  is  held  by  the  weight  of  authority  that 
such  omission  is  not  of  sufficient  gravity  to  nullify  the  judg- 
ment or  other  proceedings  thereunder,  it  not  being  a  juris- 
dictional defect.  Jurisdiction  depending  upon  the  filing  of 
a  proper  petition  where  this  is  the  rule,  the  proceedings  not 
being  adversarv  to  the  ward. 

(Millard  v.  Marmon,  110  HI-  040-7  N.  E.  ReP.  408:  McBride  v. 
<Hate  no  Ind.  525-30  N.  E.  Rep.  099;  Essinger  v.  Murphy,  42  Mmn. 
84  _43  N.  W.  Rep.  7S4;  Prine  v.  Mapp,  80  Ga.  137  —  5  S.   E.  Rep.  l>6; 


152  VOID   JUDICIAL    AND    EXECUTION    SALES. 

Orman  v.  Bowles.  18  Colo.  463  —  33  Pac.  Rep.  109 ;  Peak  v.  Shasted,  21 
111.  137  —  74  Am.  Dec.  S3;  Porter  v.  Robinson,  3  A.  K.  Marsh.  253-13 
Am.  Dec.  153;  Burgess  v.  Kirby,  94  N".  C.  575;  Gage  v.  Schroder,  73  111. 
44;  Morgan  v.  Burnett.  18  Ohio,  535;  Blake  v.  Douglass,  27  Ind.  416; 
McElmore  v.  Railway  Co.,  58  Miss.  514.) 

In  Alabama  it  is  held  that  the  probate  sale  of  a  ward's 
property  made  by  that  court  upon  a  proper  application  and 
sufficient  showing  by  the  general  guardian  is  a  proceeding 
in  rem  in  which  the  appointment  of  a  guardian  ad  litem  to 
represent  the  ward  is  not  only  no  requirement  but  wholly 
unauthorized  by  law. 

(Daughtry  v.  Thweatt.  105  Ala,  615  —  16  So.  Rep.  920.) 

So  the  neglect  to  make  such  an  appointment  in  a  suit  in 
equity  in  the  foreclosure  of  a  mortgage  upon  real  estate  in 
which  an  infant  is  interested, 
(Smith  v.  Bradley,  6  S.  &  M.  4S5.) 

or  after  the  service  of  citation  in  proceedings  in  partition, 
the  failure  to  appoint  a  guardian  ad  litem  is  not  such  a  radi- 
cal defect  in  the  proceedings  as  will  expose  them  to  successful 
collateral  impeachment. 

(Austin  v.  Seminary,  8  Met.  196  —  41  Am.  Dec.  497;  Montgomery  v. 
Carlton,  56  Tex.  361.) 

When  the  proceedings  are  in  equity  and  service  is  had 
upon  the  ward,  the  appearance  and  answer  of  the  general 
guardian  in  the  absence  of  a  guardian  ad  litem  is  binding, 
though  irregular,  upon  the  principle  that  the  minor  thus 
answered  for  is  the  ward  of  the  court,  and  whenever  the  fact 
of  his  incompetency  by  virtue  of  his  minority  is  brought  to 
the  attention  of  the  court,  it  will  protect  his  interests  and  he 
is  concluded  by  its  proceedings. 

(Simmons  v.   Bayard,   30  Fed.   Rep.   632.) 

A  judgment  pronounced  against  an  infant  who  has  been 
duly  served,  upon  appearance  and  answer  by  his  general 
guardian,  instead  of  a  guardian  ad  litem,  was  held  not  void 
by  the  federal  supreme  court. 

(Colt  v.  Colt,  111  U.  S.  566  —  4  Sup.  Ct,  Rep.   553.) 

And  the  appearance  of  the  general  guardian  is  held  suffi- 
cient in  California  to  confer  jurisdiction  over  the  person  of  the 


SALE  OF  LANDS  LOCATED  IN  ANOTHER  COUNTY.  153 

minor  defendant,  and  it  is  immaterial  that  no  guardian  ad 
litem  was  appointed  for  him. 

(Lumber  Co.  v.  Phillips,  94  Cal.  54  —  29  Pac.  Hep.  328 j  Smith  v.  Mc- 
Donald, 42  Cal.  484.) 

After  service  01  notice  upon  the  minor  the  failure  to 
appoint  a  guardian  ad  litem  can  be  regarded  but  as  an  irregu- 
larity which  does  not  go  to  the  jurisdiction,  and  therefore 
upon  principle,  is  insufficient  to  expose  the  proceedings  to 
collateral  impeachment. 

Is  a  Fatal  Infirmity. 

§  162.  Decisions  are  not  wanting  announcing  the  doctrine 
that  the  omission  to  appoint  a  guardian  ad  litem  for  an  in- 
fant in  an  administrator's  application  to  sell  lands  in  which 
the  minor  is  interested  makes  the  sale  utterly  void  as  to  the 
infant.  Notice  to  the  infant  and  the  appointment  of  a  guar- 
dian ad  litem  being  jurisdictional  requirements,  the  proceed- 
ings being  adversary  to  the  ward,  and  pursuant  to  a  cardinal 
principle  in  the  administration  of  justice  the  property  of  no 
one  can  be  lawfully  appropriated  without  an  opportunity  of 
being  heard,  which  contemplates  that  he  either  must  be 
served  with  process,  or  the  publication  of  notice,  appointment 
of  a  guardian  or  some  other  appropriate  proceeding  which 
brings  him  into  court,  and  that  an  infant  is  no  exception  to  this 
rule. 

(Roche  v.  Waters,  72  Md.  264  —  18  Atl.  Rep.  535:  Bloom  v.  Burdiek, 
1  Hill,  130  —  37  Am.  Dec.  299;  Messenger  v.  Kintnor.  4  Binn.  97;  Smith 
v.  Rice,  11  Mass.  507;  Proctor  v.  Newhall,  17  Mass.  91.) 

In  Alabama  it  is  held  in  a  recent  case  that  the  decree 
settling  an  estate  in  probate  is  void  as  to  an  infant  distributee 
for  whom  no  guardian  ad  litem  was  appointed. 
(Eatman  v.  Eatman,  82  Ala.  223  —  2  So.  Rep.  729.) 

SALE    OF    LANDS    LOCATED    IN    ANOTHER 
COUNTY. 

Statutory  Requirements  as  to  Institution  of  Suit. 

8  163.  Under  a  statute  providing  that  all  actions  for  the 
sale  of  real  property  under  foreclosure  of  mortgage  or  other 
liens  must  be  instituted  in  the  county  in  which  the  land  or 


154  VOID   JUDICIAL    AND    EXECUTION    SALES. 

some  part  thereof  is  situated,  a  foreclosure  suit  involving 
lands  located  in  different  counties  but  in  the  same  state  is 
properly  brought  in  any  one  of  the  counties,  notwithstanding 
the  fact  that  all  the  parties  defendant  are  not  residents  of 
such  county. 

(Goldtree  v.  McAllister,  86  Cal.  93  —  24  Pac.  Rep.  801;  West  v. 
Walker.  77  Wis.  557  —  46  N.  W.  Rep.  819:  Perkins  v.  McCarley,  97 
Ky.  43  —  29  S.  W.  Rep.  867;  Hendrix  v.  Nesbitt,  96  Ky.  652  —  29  S.  W. 
Rep.   627.) 

Hence  an  action  involving  the  title  to  land  properly  in- 
stituted in  the  county  wherein  the  premises  are  located,  but 
subsequently  and  before  the  rendition  of  judgment,  the  par- 
ticular portion  of  the  original  county  wherein  such  land  is 
situated  is  annexed  to  and  made  a  part  of  another  or  a  new 
county,  the  court  in  which  the  action  was  commenced  does 
not  lose  jurisdiction  to  proceed  to  final  judgment  and  sale  of 
the  property. 

(Loan  &  Trust  Co.  v.  Kauffman,  108  Cal.  214  —  41  Pae.  Rep.  467.) 

Objection  to  Suit  Brought  in  Wrong  County  May  be  Waived. 

§  164.  While  it  is  a  general  rule  and  provision  of  statute 
in  almost  if  not  every  state  that  actions  for  the  sale  of,  or 
involving  the  title  of  real  estate,  whether  under  mortgage  or 
otherwise,  should  be  commenced  in  the  county  wherein  the 
land  or  some  part  of  it  is  located, 

(Fritts  v.  Camp,  94  Cal.  393  —  29  Pac.  Rep.  867:  Cobbey  v.  Wright, 
29  Neb.  274  —  45  N.  W.  Rep.  460;  Urton  v.  Woolsey,  S7  Cal.  38  —  25 
Pac.   Rep.    154.) 

this  however  is  one  of  those  jurisdictional  requirements  that 
may  be  waived  by  express  consent  of  the  parties  to  the  action, 

(Kipp  v.  Cook.  46  Minn.  535  —  49  N.  W.  Rep.  257;  Walker  v.  Stroud, 
6  S.  W.  Rep.  202;  Watts  v.  White,  13  Cal.  321.) 

and  generally  a  failure  to  plead  in  abatement,  the  objection 
to  the  jurisdiction  is  waived,  the  question  being  one  merely 
as  to  the  place  of  trial,  and  is  a  personal  privilege  that  may 
accordingly  be  waived  expressly,  or  by  implication  on  account 
of  failure  to  urge  objections  upon  such  grounds. 

(Walker  v.  Stroud,  6  S.  W.  Rep.  202;  Houck  v.  Lasher,  17  How.  Pr. 
520.) 


DEATH  OR  DISABILITY  OF  THE  FARTIES,  OR  EITHER  OF  THEM.  155 

Probate  Sale  of  Lands  in  Another  County. 

§  1G5.  The  authorities  are  not  harmonious  as  to  the  valid- 
ity of  a  sale  of  land  located  in  one  county  upon  an  order  from 
the  probate  court  of  another  county.  The  disagreement  is 
directly  due  to  peculiar  provisions  of  statute  touching  sales 
of  this  kind.  Thus  in  Alabama  in  a  late  case  it  was  decided 
that  the  probate  court  having  jurisdiction  of  the  guardian- 
ship, has  jurisdiction  to  order  the  sale  of  the  lands  of  the 
ward  located  in  any  one  of  the  counties  of  the  state.  And  a 
similar  ruling  would  obtain  in  the  case  of  the  sale  of  lands  of 
a  decedent  by  an  administrator. 

(Matthews  v.  Matthews,  104  Ala.  303  —  16  So.  Rep.  91.) 

By  statute  the  orphans'  court  is  authorized  to  order  the 
sale  of  lands  of  a  decedent  located  in  another  county,  but  to 
do  so  an  authenticated  copy  of  the  order  of  sale  must  be 
presented  by  the  fiduciary  to  the  orphans'  court  of  the  county 
in  which  the  land  lies,  which  latter  court  must  make  the  order 
to  sell  and  must  receive  the  report  of  sale.  A  sale  made 
under  the  order  of  the  former  court  is  a  nullity. 

(Hopkins  v.  Meir,  19  Atl.  Rep.  264.) 

DEATH   OE   DISABILITY   OF   THE   PARTIES,    OR 
EITHER   OE   THEM. 

Death  of  Sole  Plaintiff  or  Sole  Defendant. 

§  166.  Notwithstanding  the  fact  that  the  defendant  has 
been  properly  brought  into  court  by  the  service  of  regular 
process  or  is  in  court  by  voluntary  appearance,  yet  the  juris- 
diction over  his  person  may  thereafter  still  fail  by  reason  of 
the  death  of  either  party  before  the  rendition  of  final  judg- 
ment. Hence,  in  all  proceedings  save  such  as  are  strictly 
in  rem,  if  the  sole  plaintiff  or  sole  defendant  dies  during 
the  pendency  of  the  action,  the  judgment  or  decree  render 
after  such  death  against  either,  and  the  death  of  the  party  is 
suggested  by  the  record,  is  void  noon  the  plainest  of  prin- 
ciples, for  a  judgment  against  a  dead  person,  if  efficacy  is 
accorded  to  it,  is  at  most  a  judgment  againsl  his  heirs,  de- 
visees or  representatives,  and  tin--.'  are  neither  parties  nor 
privies  to  the  judgment,  and  manifestly  can  not  be  bound 
thereby. 


15G  TOID    JUDICIAL    AND    EXECUTION    SALES. 

Not  Suggested  by  Record  makes  Judgment  Voidable  only. 
§  167.  If  the  death  of  either  of  the  parties  to  a  legal  con- 
troversy does  not  appear  affirmatively  from  the  record,  the 
judgment  is  voidable  merely,  and  can  not  be  successfully  im- 
peached in  a  collateral  proceeding,  according  to  the  great 
weight  of  authority,  and  upon  principle. 

(Elliott  v.  Bastian,  11  Utah,  452  —  40  Pac.  Rep.  713;  Knott  v.  Taylor, 
99  N.  C.  511  —  6  S.  E.  Rep.  788;  Mitchell  v.  Schoonover,  16  Ore.  216  — 
17  Pac.  Rep.  867;  Jennings  v.  Simpson,  12  Neb.  565  —  11  N.  W.  Rep. 
S80;  New  Orleans  v.  Gaines.  138  U.  S.  595  —  11  Sup.  ft.  Rep.  428;  Mc- 
Cormick  v.  Paddock,  20  Neb.  486  —  30  N.  W.  Rep.  602 ;  Mosley  v.  Manu- 
facturing Co.,  4  Okla.  492  —  46  Pac.  Rep.  508;  Berkey  v.  Judd,  27  Minn. 
475  —  8  N.  W.  Rep.  3S3;  Clallin  v.  Dunne,  129  111.  241  —  21  N.  E.  Rep. 
834;  Coleman  v.  McAnulty,  16  Mo.  177  —  57  Am.  Dec.  229:  Giddings  v. 
Steele,  2S  Tex.  732  —  91  Am.  Dec.  336;  Yaple  V.  Titus,  41  Pa.  St.  195  — 
SO  Am.  Dec.  604 ;  Griswold  v.  Stewart,  4  Cow.  457 ;  Stocking  v.  Hanson, 
22  Minn.  545;  Tapley  v.  Martin,  116  Mass.  275;  Reid  V.  Holmes,  127 
Mass.  326;  West  v.  Jordan,  62  Minn.  484;  Holt  v.  Thacher.  52  Vt.  592.) 

One  of  Several  Defendants  Dies  before  Judgment. 

§  168.  Upon  the  same  principle,  where  there  are  several 
defendants  and  one  of  them  dies  pending  the  litigation  and 
before  judgment,  his  death  not  appearing  by  an  inspection 
of  the  record,  a  judgment  rendered  against  all  defendants 
including  the  decedent,  is  not  void  as  to  such  decedent,  but 
merely  voidable.  Collateral  impeachment  is  unavailable, 
though  the  judgment  may  be  vacated  upon  motion  suggesting 
the  death  of  defendant. 

(Boor  v.  Lowrey,  103  Ind.  468  —  3  N.  E.  Rep.  151;  King  v.  Burdett, 
28  W.  Va.  601  —  57  Am.  Rep.  687;  Burke  v.  Stokley,  65  N.  C.  569.) 

Death  of  Sole  Defendant  Renders  Judgment  Void. 

,'  1  69.  The  rule  at  common  law  was  that  the  death  of  the 
sole  plaintiff  or  defendant  abated  the  action.  Accordingly, 
is  seems  to  be  the  firmly  settled  doctrine  in  several  states  that 
a  judgment  rendered  against  a  person  who  was  dead  at  the 
time  is  unqualifiedly  void. 

(Carter  v.  Carriger,  3  Yerg.  411—24  Am.  Dec.  585;  Meyer  v.  Hearst, 
75  Ala.  390;  McCreary  v.  Everling,  11  Cal.  284:  Tarleton  v.  Cox.   15  Miss. 

i;  Morrison  v.  Deadrick,  10  Humph.  342:  Edwards  v.  Whited.  29  La. 
Ann.  647;  Lee  v.  Gardiner,  26  Miss.  521;  Norton  v.  Jamison,  23  La.  Ann. 
L02;  Lynch  v.  Tunnell,  4  Hair.  284;  McCloskey  v.  Wingfield,  29  La. 
Ann.    141.) 


DEATH  OR  DISABILITY  OF  THE  PARTIES,  OR  EITHER  OF  THEM.  157 

Death  of  Defendant  Pending  Publication  of  Notice. 

§  170.  In  proceedings  quasi  in  rem,  such  as  the  fore- 
closure of  mortgage  and  other  liens,  the  court  acquires  no 
jurisdiction  to  pronounce  judgment  if  the  defendant  was 
dead  before  the  requisite  notice  provided  by  statute  was 
given,  and  the  decree  is  void  and  can  be  collaterally  im- 
peached. 

(Greenstreet  v.  Thornton.  60  Ark.  3C9  —  30  S.  W.  Rep.  347.) 

For,  if  the  defendant  named  in  the  proceedings  is  dead  the 
published  summons  against  him  has  no  validity  whatever, 
and  wTill  not  support  the  judgment  in  any  event. 

(Crosley  v.  Hutton,  9S  Mo.  196  —  11  S.  W.  Rep.  613;  Williamson  v. 
Hudson,  93  Mo.  524  —  6  S.  W.  Rep.  261;  Clanlin  v.  Dunne,  129  111.  241  — 
21  N.  E.  Rep.   834.) 

Effect  of  the  Death  of  Sole  Plaintiff. 

§  171.  Pursuant  to  the  rule  announced  in  some  adjudica- 
tions judgments  in  favor  of  a  plaintiff  rendered  by  a  court  of 
general  jurisdiction  having  jurisdiction  of  the  subject-mat- 
ter of  the  action  and  having  properly  acquired  jurisdiction 
of  the  parties,  and  pronounced  subsequent  to  plaintiff's  death, 
are  not  considered  mere  nullities,  but  are  held  to  be  voidable 
at  most  and  binding  until  vacated  or  reversed. 

(Hayes  v.  Shaw,  20  Minn.  405;  Webber  v.  Stanton,  1  Mich.  N.  P.  97.) 

Diametrically  opposite  are  the  declarations  of  other  courts 
which  hold  such  judgments  to  be  unconditionally  void  and 
subject  to  collateral  impeachment  wherever  and  whenever 
called  in  question.  The  rule  in  these  declarations  is  the 
same  whether  it  is  a  sole  plaintiff  or  a  co-plaintiff,  it  is  void 
in  either  case. 

(Young  v.  Pickens,  45  Miss.  553;  Moore  v.  Easley,  18  Ala.  619;  Tarle- 
ton  V.  Cox,  45  Miss.  430:  Wcis  v.  Aaron,  75  Miss.  13S  —  21  So.  Ry. 
763;  Dyson  v.  Baker,  54  Miss.  28;  Hall  v.  Williams,  6  Pick.  246. 

Jurisdiction  of  Minors  and  Incompetents. 

§  172.  As  a  general  rule  where  process  has  been  regularly 
served  on  an  infant  or  incompetent,  the  failure  of  the  guar- 
dian ad  litem,  curator,  prochein  ami  or  committee  to  answer, 
or  the  failure  to  make  such  appointment  altogether  for  an 
infant  or  incompetent  having  no  regular  guardian,  will  not 


158  YOID    JUDICIAL    AXD    EXECUTION    SALES. 

render  a  judgment  by  default  a  nullity,  although  it  is  mani- 
fest irregularity  sufficient  to  avoid  the  judgment  in  a  proper 
proceeding. 

(Childs  v.  Lanterman,  103  Cal.  3S7  —  37  Pac.  Rep.  3S2;  Hoover  v. 
Kinsey  Plow  Co.,  55  Iowa,  C68  —  S  N.  W.  Rep.  658;  Eisenmenger  v. 
Murphy,  42  Minn.  84  —  43  N.  W.  Rep.  784;  Drake  v.  Henshaw,  47  Iowa, 
291;  Randalls  v.  Wilson,  24  Mo.  76;  Allen  v.  Savior,  14  Iowa,  435; 
Barber  v.  Graves,  18  Vt.  290;  Simmons  v.  McKay,  5  Bush.  25.) 

But  where  the  record  in  a  suit  in  mortgage  for  foreclosure 
affirmatively  discloses  the  fact  that  the  infant  heirs  of  the 
mortgagor  were  not  made  parties  by  personal  service  and  no 
guardian  ad  litem  was  appointed  and  no  answer  was  filed  or 
appearance  made,  they  are  not  bound  by  the  decree  and  may 
sue  to  recover  the  land  from  the  purchaser. 

(Bailey  v.  Bailey,  41  S.  C.  337  —  19  S.  E.  Rep.  669.) 

A  judgment  against  an  infant  rendered  without  actual 
service  of  process  but  who  was  represented  by  a  guardian 
ad  litem  appointed  by  the  court  for  him  is  not  void  and 
hence  is  not  open  to  collateral  impeachment. 

(Alston  v.  Emmerson,  83  Tex.  231  —  18  S.  W.  Rep.  566.) 

ISTor  is  a  judgment  against  a  minor  who  has  been  served 
with  process  and  who  was  represented  in  the  action  by  at- 
torney open  to  collateral  impeachment  because  no  guardian 
ad  litem  was  appointed. 

(Cohee  v.  Baer,  134  Ind.  375  —  32  N.  E.  Rep.  920.) 

Decree  Vacated  After  Sale  and  its  Effects. 

§  173.  Where  judgments  rendered  against  a  deceased  party 
and  the  death  is  not  suggested  by  the  record  are  considered 
voidable  merely,  it  is  evident  that  a  sale  thereunder  to  a  bona 
fide  purchaser  without  notice,  the  sale  being  completely  con- 
summated before  the  judgment  is  sought  to  be  vacated,  will 
transfer  the  title,  as  a  motion  to  vacate,  or  an  appeal  for 
error,  would  not  relieve  against  a  sale  under  execution  upon 
a  judgment  which  is  erroneous  only  and  not  void. 

It  is  different  however,  in  all  those  cases  in  which  land  or 
an  interest  in  land  is  directly  decreed  from  one  person  to 
another,  or  where  one  party  is  decreed  to  convey  the  land  or 
interest  therein  to  the  other,  and  the  deed  of  conveyance,  as 
for  instance  in  the  case  of  incompetents,  is  made  by  a  com- 


DEATH  OR  DISABILITY  OF  THE  PARTIES,  OR  EITHER  OF  THEM.  150 

missioner,  a  reversal  or  vacation  of  the  decree  will  divest  the 
estate  acquired  by  it,  and  the  same  reverts  again  to  the 
former  owner.  According  to  the  weight  of  authority  the  suit 
in  such  case  is  considered  pending  so  long  as  the  right  to  open 
the  decree  exists,  and  hence  the  purchaser  assumes  the  risk 
consequent  upon  a  vacation  or  reversal  of  the  decree.  This 
although  is  not  the  case  with  a  decree  of  sale,  as  this  stands 
on  another  footing,  and  an  incompetent's  rights  after  tin- 
vacation  or  reversal  of  the  decree  for  error,  after  a  sale  has 
been  made,  are  similar  to  those  of  any  other  party  under 
like  circumstances. 

(McMullen  v.  Reeves,  102  N.  C.  550  —  9  S.  E.  Rep.  449;  Wood  v. 
Watson,  107  N.  ('.  52  —  12  S.  E.  Eep.  49:  Thomas  v.  Hunsacker,  108 
N.  C.  720  —  13  S.  E.  Rep.  221;  Hull  v.  Hull,  20  W.  Va.   I.) 

Actions  against  Married  Women. 

§  174.  In  a  great  majority  of  the  states  the  common  law 
disabilities  of  married  women  have  been  removed  by  statute, 
but  even  in  those  states  where  this  has  not  been  done,  per- 
sonal judgments  may  still  be  rendered  against  both  husband 
and  wife,  as  for  instance  upon  a  tort  committed  by  the  wife, 
or  on  a  contract  made  before  marriage.  Decisions  are  not 
wanting,  however,  holding  a  judgment  against  a  married 
woman  absolutely  void  when  it  is  rendered  upon  pleadings 
which  do  not  embrace  a  state  of  facts  authorizing  it. 

I  White  v.  Lumber  Co.,  29  W.  Va.  385  —  1  S.  E.  Rep.  572;  Breckwoldt 
V  Morris.  149  Pa,  St.  291  —  24  Atl.  Rep.  300;  Gould  v.  McFall.  Ill  Pa. 
St.  GO  — 2  Atl.  Rep.  72;  Dyke  v.  Wells,  103  Pa.  St.  49:  Higgins  v. 
Peltzcr,  49  Mo.  152;  Alexander  v.  Lydick.  80  Mo.  341;  Spencer  v.  Par- 
sons, S9  Ky.  577  —  13  S.  W.  Rep.  72:  Mallett  v.  Parham.  52  Miss.  921; 
Wells  v.  Norton.  28  La.  Ann.  300;  Magruder  v.  Buck,  56  Miss.  "14: 
McKimiey  v.  Brown.  130  Pa.  St.  365  —  18  Atl.  Rep.  642:  Will  v.  Sim- 
mons, 66  Mo.  017;  Caldwell  v.  Walters.  18  Pa.  St.  79  —  55  Am.  Dee.  592.) 

According  to  the  vast  weight  of  authority  a  judgment 
against  a  married  woman  is  not  void  when  founded  upon  a 
contract  which  she  was  incompetent  to  make,  or  erroneous  for 
any  other  reason.  Though  erroneous  for  any  such  reason  it 
is  nevertheless  binding  upon  her  until  vacated  by  appeal 
or  other  appropriate  proceeding.  "While  the  contrad  sued  on 
may  be  void,  still  this  will  not  impair  the  conclusiveness  of 
the  judgment  rendered  in  the  action  to  which  she  was  a 


100  VOID    JUDICIAL    AND    EXECUTION    SALES. 

party  so  long  as  it  stands  unreversed.  This  rule  in.  some  of 
the  cases  is  perhaps  due  to  the  provisions  of  statute  permit- 
ting a  married  woman  to  sue  and  be  sued. 

(McCurdy  v.  Baughman,  43  Ohio  St.  7S  —  1  N.  E.  Rep.  93;  Wilson 
rv.  Coolidge,  42  Mich.  112  —  3  N.  W.  Rep.  285;  MeCullough  v.  Dashiell, 
85  Va.  37  —  6  S.  E.  Eep.  610;  Lieb  v.  Liechtenstein,  121  Ind.  4S3  —  23  X. 
E.  Rep.  284;  Vick  v.  Pope,  81  N.  C.  22;  Howard  v.  North,  5  Tex.  290  — 
51  Am.  Dec.  769;  Glover  v.  Moore,  60  Ga.  189;  Chatterton  v.  Young, 
2  Tenn.  Ch.  768;  Guthrie  v.  Howard,  32  Iowa,  54;  Wright  v.  Wright,  97 
Ind.  444;  Nicholson  v.  Cox,  83  N.  C.  44  —  35  Am.  Rep.  556;  Goodnow 
v.  Hill,  125  Mass.  587;  Davis  v.  Bank,  5  Neb.  242 --25  Am.  Rep.  4S4; 
Wilson  v.  Herbert,  41  N.  J.  L.  456  —  32  Am.  Rep.  243;  Cashman  v. 
Henry,  75  N.  Y.  103  —  31  Am.  Rep.  437;  Farris  v.  Hayes,  9  Ore.  81.) 

INSTANCES  OF  WANT  OF  JURISDICTION. 

Title  to  Land  Located  in  Another  State. 

§  175.  It  is  a  firmly  established  rule  in  the  jurisprudence 
of  this  country  that  the  courts  of  one  state  are  without  juris- 
diction over  the  title  to  realty  situated  in  another  state,  and 
the  provision  in  the  federal  constitution  demanding  that  full 
faith  and  credit  be  given  in  each  state  to  the  records  and 
judicial  proceedings  of  other  states,  is  subordinated  to  this 
rule,  applying  only  to  such  records  and  proceedings  of  the 
court  wherein  they  have  jurisdiction.  In  suits  involving  the 
title  of  lands  in  another  state  the  subject-matter  of  the  action 
is  beyond  the  jurisdiction  of  the  court  and  hence  all  its  acts 
relative  to  the  land  are  coram  non  judice  and  void. 

(Lindley  v.  O'Reilly,  50  N.  J.  L.  636  —  15  Atl.  Rep.  379;  Bullock  v. 
Bullock,  51  N.  J.  Eq.  444  — 27  Atl.  Rep.  435;  Nelson  v.  Potter,  50  N.  J. 
L.  324—15  Atl.  Rep.  375;  Wilkinson  v.  Leland,  2  Pet.  627.) 

Jurisdiction  over  the  subject-matter  being  indispensable  to 
the  rendition  of  a  valid  judgment,  and  hence  necessary  to  a 
legal  sale  thereunder,  if  the  probate  court  orders  the  sale  of 
binds  of  the  decedent  located  beyond  the  territorial  limits  of 
the  state,  the  order  and  sale  are  void,  the  court  being  power- 
less to  do  any  valid  act  touching  the  disposition  of  the  prop- 
erty in  the  latter  state. 

(Latimer  v.  Railway  Co.,  43  Mo.  105  —  97  Am.  Dee.  378;  Nbwler  v. 
Coit,  1  Ohio,  519  —  13  Am.  Dec.  640:  Salmond  v.  Price,  13  Ohio,  368  — 
42  Am.  Dec.  204;  Watkins  v.  Holman.  16  Pet.  25.) 


INSTANCES   OF    WANT   OF   JURISDICTION.  161 

Partition  and  Mortgage  Foreclosure  of  Land  in  Another  State. 

§  176.  Accordingly,  the  courts  of  one  state  arc  without 
jurisdiction  to  partition  lands  located  in  another  state  for 
the  reason  that  the  partition  can  only  be  decreed  by  the  courts 
of  the  state  wherein  the  land  is  situated.  A  sale  under  such 
a  decree  must  be  utterly  void,  though  the  court  could  have 
acted  upon  the  person  if  brought  within  the  jurisdiction,  and 
compelled  a  conveyance  or  otherwise  comply  with  its  decree. 

(Wimer  v.  Wimer,  82  Va.  890  —  3  Am.  St.  Rep.  126;  Poindexter  v. 
Burwell.   82  Va.   507.) 

So  the  foreclosure  in  the  courts  of  one  state  of  a  mortgage 
upon  lands  located  in  another  state  is  for  similar  reasons 
totally  devoid  of  validity,  and  the  purchaser  gets  no  title  by 
his  purchase  under  the  decree  of  foreclosure. 

(Trust  Co.  v.  Telegraph  Co..  55  Conn.  334  —  11  Atl.  Rep.  1S4.) 

Decree  Holding  Conveyance  in  another  State  Fraudulent. 

§  177.  A  decree  of  a  court  in  Xew  York  declaring  a  deed 
to  land  in  Tennessee  fraudulent  and  void  is  without  juris- 
diction and  itself  a  nullity,  as  such  a  decree  would,  in  effect, 
be  a  judgment  i)i  rem  by  a  court  having  no  jurisdiction  of  the 
res  involved  in  the  suit. 

(Carpenter  v.  Strange.   141   U.   S.  S7  —  11   Sup.   Ct.  Rep.   960.) 

Sale  by  Administrator  of  Living  Owner's  Lands. 

§  178.  Courts  of  probate  have  jurisdiction  when  properlv 
invoked  to  grant  letters  of  administration  or  testamentary  on. 
the  estates  of  deceased  persons,  but  not  when  the  owner  of 
the  estate  is  alive.  The  death  of  the  owner  is  a  necessarv 
jurisdictional  fact,  and  should  the  court  grant  letters  under 
a  misapprehension  of  the  fact,  and  the  supposed  decedent  is 
in  fact  alive,  the  infirmity  is  fatal,  and  a  sale  by  the  ad- 
ministrator is  void  and  may  be  overthrown  in  a  collateral 
proceeding.  The  title  is  not  affected  in  the  least  degree  by 
such  a  pretended  sale. 

(Scott  v.  McNeal,  154  U.  S.  34  —  14  Sup.  Ct.  Rep.  1108;  Springer  v. 
Shavender,  118  N.  C.  33  —  23  S.  E.  Rep.  976.) 

Other  Instances. 

§   179.   In   California   it  is  held    that   where  the  statute 
failed  to  provide  concerning  the  distribution  and  settlement 
11 


162  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

of  estates  of  decedents  who  died  prior  to  its  enactment,  ad- 
ministration upon  such  estates  is  void  because  the  court  has 
no  jurisdiction  of  the  subject-matter  and  the  proceedings  in 
administration  are  a  usurpation  of  authority  and  void. 

(McNeil  v.  Society.  66  Cal.  105  —  4  Pac.  Rep.  1096:  Grimes  v.  N  orris, 
6  Cal.  621  —  65  Am.  Dec.  545 ;  Coppinger  v.  Rice.  3?,  Cal.  408 ;  Trevis  v. 
Pitcher,  10  Cal.  465;  Downer  v.  Smith.  24  Cal.  114;  Severance  v.  Gerke, 
3   Sawyer.   363.) 

Where  the  court  ordered  a  defendant  to  convey  land  situ- 
ated in  another  state  but  before  compliance  with  the  decree 
the  defendant  died,  whereupon  the  court  appointed  a  com- 
missioner to  execute  the  conveyance  for  him  which  was 
accordingly  done,  the  conveyance  was  held  to  be  void,  by  the 
court  of  the  latter  state  upon  the  ground  that  the  court  of  the 
former  state  had  no  power  to  order  one  acting  in  a  fiduciary 
capacity  to  convey  land,  the  decree  being  ineffectual  unless 
the  owner  in  person  executes  the  conveyance. 

(Railway  Co.  v.  Gay.  86  Tex.  571  —  26  S.  W.  Rep.  590;  Morris  v. 
Hand.  70  Tex.  481  —  8  S.  W.  Rep.  210;  Bosby  v.  Burrow.  52  Tex.  404.) 

By  the  statute  the  orphans'  court  is  authorized  to  order  the 
sale  of  lands  of  a  decedent,  lying  in  another  county,  in  which 
case  the  statute  requires  that  the  administrator  present  nil 
authenticated  copy  of  the  order  of  sale  to  the  orphans'  court 
of  the  county  wherein  the  land  is  situated,  and  there  obtain 
an  order  to  sell  and  report  the  sale  to  such  latter  court.  It 
was  held  .that  a  sale  made  under  the  original  order,  of  lands 
located  in  another  county,  without  any  confirmation  from 
the  court  of  that  county  is  a  nullity.  In  the  light  of  prin- 
ciple I  am  unable  to  comprehend  how  this  can  be  held  to 
be  anything  more  than  an  irregularity  making  the  sale 
merely  voidable. 

(Hopkins  v.  Meir,  19  Atl.  Rep.  264.) 

A  proceeding  in  foreclosure  of  a  special  assessment  lien 
upon  land,  the  subject-matter  of  the  action,  was  so  defectively 
described  as  to  be  incapable  of  identification,  the  assessment, 
judgment  and  confirmation  are  void,  and  manifestly  the  sale 
a  nullity. 

(People  v.  Ecrgers,  164  111.  515  —  44  N.  E.  Rep.  1074;  Pickering  v. 
Lomax.  120  111.  2S9  — 11  N.  E.  Rep.  175;  Sandford  v.  People,  102  111. 
374;  People  v.  Railway  Co.,  96  111.  369.) 


INSTANCES  OF   WANT   OF  JURISDICTION.  1     3 

While  service  obtained  in  another  state  in  conformity  to 
statutory  requirements  is  sufficient  to  sustain  a  decree  vacat- 
ing a  conveyance  of  land, 

(Wehrman  v.  Conklin,  155  U.  S.  314  —  15  Sup.  Ct.  Rep.  129.) 

jet  a  judgment  founded  upon  a  promissory  note  obtained 
against  a  non-resident  defendant  upon  constructive  service 
of  process  only,  is  void,  and  a  sale  of  land  thereunder 
nugatory. 

(Davis  v.  Walker.   156  U.  S.  680  —  15  Sup.  Ct.  Rep.  555.) 

In  the  former  the  judgment  acts  in  rem  upon  the  land 
involved,  while  in  the  latter  it  is  effective  in  personam,  and 
hence  void  when  based  upon  published  notice  only. 

A  judgment  founded  upon  a  void  attachment  and  with- 
out jurisdiction  having  been  acquired  over  the  person  of 
the  defendant  by  personal  service  of  process  is  void.  If  the 
attachment  had  been  valid  the  jurisdiction  would. have  been 
limited  to  the  property  attached,  but  that  failing  there  was 
a  total  failure  of  jurisdiction. 

(Bernhart  v.  Brown,  118  N.  C.  700  —  24  S.  E.  Rep.  527;  Keyser  v. 
Guggenheimer,   21   S.  E.  Rep.  475.) 

It  is  a  genera]  provision  of  statute  in  the  various  states 
that  a  man's  estate  shall  be  probated  in  the  county  of  his 
residence  at  the  time  of  his  death.  If  by  an  inspection  of 
the  record  of  a  proceeding  in  administration  upon  the  estate 
of  a  decedent  it  appears  that  he  was  a  non-resident  it  has 
been  held  that  the  whole  proceedings  must  be  regarded  as  a 
nullity  for  jurisdictional  infirmity. 

(Moore  v.  Philbriek,  32  Me.  102  —  52  Am.  Dec.  642;  Holyoke  v. 
Haskins,  5  Pick.  20  —  16  Am.  Dec.  372;  Harlan's  Estate.  24  Cal.  182  — 
85  Am.  Dec.  58;  Haynes  v.  Meeks.  10  Cal.  110  —  70  Am.  Dec.  703;  Raul 
v.  Willis,  69  Tex.  261  —  7  S.  W.  Rep.  357;  Munson  v.  Newson.  9  Tex. 
109;  Cutts  v.  Haskins,  9  Mass.  543;  Goodrich  v.  Pendleton,  4  Johns.  Ch. 
549;   Hearn  v.  Camp,  18  Tex.   545.  ^ 

So  a  sale  of  land  by  an  administrator  under  the  order  of 
the  court  is  unconditionally  void  where  the  judgment  ap- 
pointing him  administrator  is  set  aside  as  void  upon  juris- 
dictional grounds. 

(Stewart  v.  Golden,  98  Ga.  479  —  25  S.  E.  Rep.  528.) 


164  VOID    JUDICIAL    AND    EXECUTION    SALES. 

A  judgment  rendered  on  Sunday  is  not  merely  erroneous 
but  absolutely  void. 

(Styles  v.  Harrison,  99  Term.  128  —  41  S.  W.  Rep.  333:  Lampe  v. 
Manning,  38  Miss.  673.) 

PRINCIPLES    INVOLVED    IX    JURISDICTIONAL 

INQUIRIES. 

Presumptions  in  Favor  of  Jurisdiction. 

§  180.  The  paramount  question  to  be  ascertained  in  the 
inquiry  as  to  whether  or  not  the  court  which  pronounced  the 
particular  judgment  under  consideration  had  acquired  juris- 
diction over  the  person  of  the  defendant  against  whom  it 
was  rendered,  is  whether  it  was  a  court  of  general  or  of 
special  and  limited  jurisdiction.  Was  it  a  court  of  record 
or  an  inferior  court  not  of  record  ?  The  question  is  pertinent 
and  of  controlling  importance,  because  judgments  of  general 
jurisdiction  are  environed  and  fortified  with  the  indulgence 
of  certain  presumptions  not  accorded  to  courts  not  of  record. 
In  ascertaining  this  question  resort  must  be  had  to  the  par- 
ticular statutes  of  the  commonwealth  wherein  the  tribunal 
is  located.  It  is  a  fundamental  proposition  governing  in 
jurisdictional  inquiries  that  when  this  question  arises  in  re- 
gard to  the  judgment  of  a  domestic  court  of  general  jurisdic- 
tion proceeding  according  to  the  course  of  common  law,  all 
presumptions  are  in  favor  of  its  jurisdiction,  not  only  of 
the  subject-matter  of  the  action,  but  of  the  person  of  the 
defendant  as  well.  The  presumption  is  in  favor  of  the  regu- 
larity of  the  proceedings  of  a  court  of  record,  and  accordingly, 
when  such  a  court  has  pronounced  and  entered  judgment, 
the  record  disclosing  nothing  to  the  contrary,  jurisdiction 
over  the  defendant  will  be  presumed. 

(Dry  Goods  Co.  v.  Fuller.  5S  Ark.  1S1  —  24  S.  W.  Rep.  108;  Kelly  v. 
Kelly,  161  Mass.  111  —  36  N.  E.  Rep.  837;  Hersey  V.  Walsh.  38  Mum. 
521  —  38  N.  W.  Rep.  613:  Hilton  v.  Bachman,  24  Neb.  490  —  39  X.  W. 
Rep.  419;  Sommermeyer  v.  Schwartz,  S9  Wis.  66  —  61  X.  W.  Rep.  311; 
Hughes  v.  Cummings,  7  Colo.  138  —  2  Pac.  Rep.  2S9;  Sehad  v.  Sharp. 
95  Mo.  573  —  8  S.  W.  Rep.  549;  St.  Louis  v.  Lanigan,  97  Mo.  175  —  10 
S.  W.  Rep.  475;  Bruekman  v.  Taussig.  7  Colo.  561  —  5  Pac.  Rep.  152; 
Treat  v.  Maxwell,  S2  Me.  76  —  19  Atl.  Rep.  98;  Head  v.  Daniels,  38 
Kan.  1  —  15  Pac.  Rep.  911;  Kenney  v.  Greer,  13  111.  432  —  54  Am.  Dec. 
439;  Galpin  v.  Page,  18  Wall.  350;  Ely  v.  Tallman,  14  Wis.  28.) 


PRINCIPLES    INVOLVED    IN    JURISDICTIONAL    INQUIRIES.    165 

When  the  record  in  an  action  in  a  court  of  general  juris- 
diction is  silent,  the  presumption  of  the  jurisdiction  of  such 
court  includes  the  further  presumption  that  the  defendant 
has  been  duly  served  with  summons,  when  the  judgment  is 
called  in  question  in  a  collateral  proceeding. 

(Anderson  v.  (hay.  134  111.  550  —  2.3  N.  E.  Rep.  843;  Clark  v.  Hillis, 
134  Ind.  421  —  34  N.  E.  Rep.  13;  In  re  Eichhoff,  lot  Cal.  600  —  36  Pac. 
Rep.   11.) 

If  the  judgment  recites  the  facts  upon  which  jurisdiction 
depends,  or  of  its  exercise  of  such  jurisdiction,  it  obviates 
the  necessity  for  indulging  in  any  presumptions,  for  it  is 
only  in  case  of  the  silence  of  the  record  that  occasions  a 
resort  to  presumptions. 

(McClanahan  v.  West.  100  Mo.  309  —  13  S.  W.  Rep.  674;  Sims  v.  Gay, 
109  Ind.  501  —  9  N.  E.  Rep.  120;  Benefield  v.  Albert.  132  111.  671—24 
N.  E.  Rep.  634;  In  re  Eichhoff,  101  Cal.  600  —  36  Pac.  Rep.  11;  Pope  v. 
Harrison,  16  Lea.  82;  Baker  v.  Chapline,  12  Iowa,  204;  Huntington  v. 
Charlotte,   15  Vt.   46.) 

Recital  of  Jurisdictional  Facts  Insufficient. 

§  181.  ISTo  incompatibility  existing  between  the  disclosures 
of  the  record  and  the  general  presumption  of  jurisdiction, 
the  regularity  of  the  judgment  of  a  court  of  record  will  be 
presumed.  But  on  the  contrary,  if  the  face  of  the  record 
discloses  affirmatively  what  was  done  toward  acquiring  juris- 
diction, there  is  no  presumption  that  anything  more  was  done 
to  confer  it.  Hence,  if  the  record  recites  such  jurisdictional 
facts  and  these  are  insufficient  to  confer  jurisdiction,  the 
authority  of  the  court  to  pronounce  judgment  in  the  particu- 
lar case  can  not  be  aided  by  the  indulgence  in  presumptions 
that  such  recital  is  incorrect  or  incomplete,  for  the  affirmation 
of  the  existence  of  jurisdictional  facts  precludes  the  possi- 
bility of  support  by  way  of  presumptions,  that  otherwise 
would  prevail,  were  there  no  recitals  whatever  in  the  record. 

(Barber  v.  Morris,  37  Minn.  194  —  33  N.  W.  Rep.  559-.  Dillard  v.  Iron 
Co.,  82  Va.  734  —  1  S.  E.  Rep.  124:  Blanton  v.  Carroll.  86  Va.  539  — 
10  S.  E.  Rep.  329;  Hahn  v.  Kelly.  ::4  Cal.  391  94  Am.  Dec.  742; 
Hearing  v.  Chambers,   103  Pa.  St.   172.) 

Should  the  disclosures  of  the  record  itself  show  amrma-- 
tively  that  jurisdiction  of  the  controversy  is  wanting,  or  the 
court  has  failed  to  acquire  jurisdiction  of  the  defendant  in 


166  VOID    JUDICIAL    AND    EXECUTION    SALES. 

the  case,  the  judgment  is  not  supported  by  any  presumptions 
and  is  manifestly  an  unqualified  nullity,  impeachable  even 
collaterally  anywhere  and  everywhere  by  any  one  interested. 

(Furgeson  v.  Jones.  17  die.  204  —  20  Pac.  Rep.  842;  Wall  v.  Wall, 
123  Pa.  St.  545 — 16  Atl.  Rep.  598;  Adams  v.  Cowles,  95  Mo.  501  —  S 
S.  W.  Rep.  711;  Brickhouse  v.  Sutton.  99  X.  C.  103  —  5  S.  E.  Rep.  .380; 
Jewett  v.  Land  Co..  64  Minn.  531  —  67  N.  W.  Rep.  639;  Pressley  v. 
Harrison.  102  Ind.  14  —  1  N.  E.  Rep.  188;  Ex  parte  Sawyer,  124  U.  S. 
200  — S  Sup.  Ct.  Rep.  4S2 ;  Frankel  v.  Satterfield,  9  Houst.  201  —  19 
Atl.  Rep.  S9S;  Murphy  v.  Lyons.  19  Xeb.  6S9  —  28  X.  W.  Rep.  328.) 

And  the  recitals  in  the  judgment  of  the  due  service  of  pro- 
cess upon  the  defendant  may  be  overcome  .by  the  disclosures 
upon  the  face  of  the  entire  record  to  the  contrary,  and  this 
even  in  a  collateral  attack, 

(Goodkind  v.  Bartlett,  153  111.  419  —  38  X.  E.  Rep.  1045:  Culver  v. 
Phelps.  130  111.  217  —  22  X.  E.  Rep.  S09;  Fowler  v.  Simpson.  79  Tex. 
6ii_i.:  S.  W.  Rep.  682;  Diekison  v.  Dickison,  124  111.  483  —  16  X.  E. 
Rep.    861.) 

as  where  the  recital  in  the  judgment  of  the  service  of  process 
is  contradicted  by  the  return  of  such  service. 

(La  v.  Grommes.  158  111.  492  —  41  X.  E.  Rep.  1080;  Laney  v.  Garbee, 
105  Mo.  355  —  16  S.  W.  Rep.  831;  Laney  v.  Sweeney.  105  Mo.  360;  16 
S.  W.  Rep.  S32.) 

But  where  service  of  summons  as  evidenced  by  the  return 
in  the  record  is  defective,  but  judgment  is  subsequently 
entered  containing  affirmative  recitals  of  jurisdiction,  the 
recital  of  finding  in  the  judgment  in  this  regard  prevails  over 
the  disclosure  in  the  record  by  way  of  such  return  of  service 
of  process,  the  judgment  being  fortified  by  the  presumption 
that  other  ample  and  available  evidence  was  had  by  the  court 
than  that  contained  in  such  insufficient  return.  The  judg- 
ment accordingly  will  be  invulnerable  upon  an  attempt  at 
collateral  impeachment  or  contradiction. 

(Heek  v.  Martin.  75  Tex.  469—13  S.  W.  Rep.  51;  Goodwin  v.  Sims, 
86  Ala.  102  —  5  So.  Rep.  587;  Schee  v.  Le  Grange,  78  Iowa,  101  —  42 
X.  W.  Rep.  616;  Davis  v.  Robinson.  70  Tex.  394—7  S.  W.  Rep.  749.) 

Nor  will  the  presumption  of  jurisdiction  supporting  the 
judgment  of  a  court  of  general  jurisdiction  be  overcome 
merely  because  of  the  absence  from  the  judgment-roll  of  the 
affirmative  evidence  establishing  the  existence  of  jurisdic- 


PRINCIPLES    INVOLVED    IN    JURISDICTIONAL    INQUIRIES.    167 

tion,  for  it  is  in  the  event  of  silence  of  the  record  that  the 
presumptions  are  resorted  to  in  support  of  the  judgment, 

(Nye  v  Swan,  42  Minn.  243-44  N.  W.  Rep.  9;  McConnell  v.  Day, 
61  Ark  404-:'.:;  S.  \Y.  Rep.  731;  Herriek  v.  Butler,  30  Minn.  156  — 
14  x  W  Rep  794;  McClanahan  v.  West.  100  Mo.  309-  13  S.  W.  Kep. 
674;  Benefield  v.  Albert,  132  111.  665-24  N.  E.  Rep.  634;  Sims  v.  Gay 
109  Ind.  501  —  9  N.  E.  Rep.  120;  Settlemeier  v.  Sullivan,  97  L.  b.  444.) 

No  Presumptions  Obtain  in  Direct  Attack. 

§  182.  The  rule  that  the  record  of  a  court  of  general  juris- 
diction imports  and  is  conclusive  evidence  of  its  own  verity 
is  not  invoked  in  case  of  a  direct  proceeding  to  impeach  the 
judgment  hv  showing  that  the  recitals  therein  contained  are 
false  if  such  recitals  are  such  that  if  false  the  court  had  no 
jurisdiction  of  the  person  of  the  defendant.  Therefore, 
while  the  record  purports  to  state  the  truth,  it  may  neverthe- 
less be  shown  that  the  substance  of  the  recital  is  false.  A 
familiar  instance  is  that  where  the  recital  is  embodied  in  the 
judgment  that  the  defendant  had  been  duly  and  properly 
summoned,  which  may  be  shown  in  a  direct  proceeding  to 
impeach  the  judgment,  to  be  untrue. 

(Jamison  v.  Weaver.  *4  Iowa.  611-51  X.  W.  Rep.  65;  Quarles  v 
Hiern,  70  Miss.  891-14  So.  Rep.  23;  Wolf  v.  Bank.  84  Iowa,  loS-50 
N.  W.  Rep.  561;  Duncan  v.  Gardine,  59  Miss.  550;  Newcomb  v.  Dewey, 
27  Iowa,  381.) 

Presumptions  where  Jurisdiction  is  Acquired  by  Constructive 
Notice. 
§  183.   Much  conflict  exists  in  the  adjudicated  cases  upon 
the  proposition  as  to  whether  or  not  proceedings  against  non- 
residents wherein  jurisdiction  rests  upon  constructive  service 
of  process,  or  attachment  of  the  defendant's  property  without 
voluntary  appearance,  are  entitled  to  be  supported  by  the 
usual  presumptions  accorded  to  judgments  wherein  jurisdic- 
tion rests  upon  personal  service  of  summons.     Pursuanl  to 
the  doctrine  announced  by  a  decided  preponderance  of  the 
authorities  such  proceedings  are  contrary  to  the  course  of  the 
common  law,  and  dependent  for  their  validity  upon  a  strict 
compliance  with  all  the  statutory  requirements  touching  the 
acquisition  of  jurisdiction.     Every  essential  step  prescribed 
by  statute  must  affirmatively  appear  to  have  been  substan- 


168  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

tially  complied  with,  and  no  presumptions  can  be  invoked  in 
support  of  jurisdiction. 

(Beckett  v.  Cuenin,  15  Colo.  281  —  25  Pac.  Rep.  167;  Furgeson  v. 
Jones,  17  Ore.  204  —  20  Pac.  Rep.  S42;  Noble  v.  Railway  Co.,  147  U.  S. 
165  —  13  Sup.  Ct.  Rep.  271;  Dick  v.  Foraker,  155  U.  S.  404  —  15  Sup. 
Ct.  Rep.  124;  Trust  Co.  v.  Railway  Co.,  139  U.  S.  137  —  11  Sup.  Ct. 
Rep.  512;  Swift  v.  Meyers,  37  Fed.  Rep.  37;  Galpin  v.  Page,  18  Wall. 
350.) 

This  rule  so  ably  expounded  by  the  distinguished  jurist, 
Justice  Field  of  the  federal  supreme  court  in  Galpin  v.  Page, 
and  since  followed,  seems  to  be  founded  upon  sound  prin- 
ciple and  the  wisest  considerations  of  public  policy  and 
justice. 

Upon  the  other  hand  there  is  the  contention  advanced  in 
other  cases  to  the  effect  that  a  statutory  mode  established  for 
acquiring  jurisdiction,  by  a  court  of  general  jurisdiction, 
applicable  generally  to  all  cases  cognizable  in  such  tribunal, 
as  well  as  to  all  persons,  is  not  to  be  considered  as  a  special 
mode  for  acquiring  jurisdiction,  and  that  there  should  be  no 
difference  in  the  presumptions  applicable  to  judgments  of 
courts  of  general  jurisdiction,  when  jurisdiction  was  ac- 
quired by  constructive  service  of  process  and  seizure  of 
property,  from  such  as  are  founded  upon  personal  service  of 
summons.  That  it  is  illogical  to  make  the  distinction  by 
extending  the  indulgence  of  presumption  in  the  one  case  and 
withholding  it  in  the  other. 

(Tn  re  Newman,  75  Cal.  213  —  16  Pac.  Rep.  887;  Stewart  v.  Anderson, 
70  Tex.  5S8  — 8  S.  W.  Rep.  295:  St.  Louis  v.  Lanigan,  97  Mo.  175  — 
10  S.  W.  Rep.  475;  Sichler  v.  Look.  93  Cal.  600  —  29  Pac.  Rep.  220; 
Cooper  v.  Sunderland,   3  Iowa,   114  —  66  Am.   Dec.   52.) 

It  has  been  held  that  the  recitals  in  the  record  of  jurisdic- 
tion in  the  proceedings  of  a  court  of  record  where  jurisdic- 
tion has  been  acquired  by  constructive  service  of  process  are 
sufficient  to  support  the  judgment  when  assailed  in  a  col- 
lateral proceeding,  though  this  support  falls  when  the  record 
itself  impeaches  the  truth  of  such  recital. 

(In  re  Newman.  75  Cal.  213  —  16  Pac.  Rep.  887;  Swift  v.  Yanaway, 
153  111.  197  —  38  N.  F.  Rep.  589;  Sichler  v.  Look.  9:;  Cal.  600  —  29  Pac. 
Rep.  220;  Van  Matre  v.  Sankcy.  148  111.  536  —  36  N.  E.  Rep.  628.) 

Therefore,  where  the  affidavit  or  other  proceeding  neces- 
sary to  confer  jurisdiction  is  a  part  of  the  judgment-roll,  or  a 


PRINCIPLES   INVOLVED   IN   JURISDICTIONAL    INQUIRIES.    169 

part  of  the  record,  upon  which  it  appears  that  the  necessary 
steps  have  not  been  taken,  these  negative  the  recital  of  juris- 
diction, which  must  yield  to  the  disclosures  of  the  record 
contradicting  its  verity. 

(Barber  v.  Morris,  37  Minn.  194  —  33  N.  W.  Rep.  559;  Brown  v.  Rail- 
way Co.,  3S  Minn.  506  —  38  N.  W.  Rep.  698;  Cumminga  v.  Tabor,  61 
Wis.  1S5  — 21  N.  W.  Rep.  72;  Murphy  v.  Lyons,  19  Neb.  689  —  28  N. 
W.  Rep.  328.) 

Extent  of  the  Rule  of  Presumptions. 

§  184.  The  presumption  of  jurisdiction  may  have  a  more 
extended  latitude  than  the  mere  dispensing  with  the  necessity 
of  furnishing  the  proof  that  summons  or  process  has  been 
served  upon  the  defendant,  for  there  may  be  no  evidence  in 
the  records  or  files  in  the  cause  that  there  has  ever  been  a 
petition  praying  for  the  sale  of  the  property  presented  to  the 
court,  or  some  other  essential  document  may  not  be  found 
among  the  files,  and  in  such  case  if  the  court  is  one  considered 
as  of  general  jurisdiction  it  will  bo  presumed  that  such 
petition  or  other  document  originally  existed  in  sufficient 
form  and  substance,  but  that  the  same  has  disappeared  from 
the  files. 

(McConnell  v.  Day.  61  Ark.  464  —  33  S.  W.  Rep.  731 :  Nye  v.  Swan. 
42  Minn.  243  —  44  N.  W.  Rep.  9:  Seye  v.  McCallister,  IS  Tex.  SO  —  67 
Am.  Dec.  689;  Alexander  v.  Mavriek,  IS  Tex.  179  —  67  Am.  Dee.  693; 
Doolittle  v.  Holton,  28  Vt.  819  —  67  Am.  Dec.  745 ;  Worthy  v.  Johnson, 
8  Ga.  236  —  52  Am.  Dec.  399.) 

So  the  lapse  of  a  long  period  of  time  from  the  date  of  the 
sale,  whether  execution  or  judicial,  and  the  time  when  it  is 
assailed  upon  the  ground  of  its  invalidity,  raises  the  pre- 
sumption that  the  court  aud  its  functionaries  performed  their 
respective  duties,  notwithstanding  the  non-existence  of  any 
positive  evidence  of  the  existence  of  certain  acts  provided 
by  statute  to  be  performed  in  the  consummation  of  the  sale. 
Attacks  upon  judicial  proceedings  and  sales  are  not  favored 
under  circumstances  of  this  nature. 

(Sledge  v.  Elliott,  116  X.  C.  712  —  21  S.  E.  Rep.  797:  Bradford  v. 
Larkin,  57  Kan.  90  —  45  Pac.  Rep.  69;  Seward  v.  Didien,  16  Neb.  58  — 
20  N.  W.  Rep.  12:  Swift  v.  Yanaway.  153  111.  197  —  38  N.  E.  Rep.  589; 
Vasques  v.  Richardson,  19  Mo.  96;  Giddings  v.  Smith.  15  Vt.  344;  Whit- 
man v.  Fisher.  74  111.  147:  Hazard  v.  Martin.  2  Vt.  S4:  Stevenson  v. 
McReary,  20  Miss.  9  —  51  Am.  Dee.   102.) 


170  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

Presumptions  not  Applicable  to  Inferior  Courts. 

§  185.  With  respect  to  presumptions  there  is  a  funda- 
mental distinction  between  judgments  pronounced  by  courts 
of  general  and  those  rendered  by  inferior  or  limited  jurisdic- 
tion. The  presumption  in  regard  to  the  judgments  of  in- 
ferior courts  is  diametrically  the  opposite  to  that  affecting 
judgments  of  courts  of  record,  for  the  acts  and  proceedings 
of  courts  not  of  record  are  not  only  strictly  confined  to  the 
scope  of  their  jurisdiction,  but  their  proceedings  must  af- 
firmatively disclose  that  they  have  so  acted.  The  existence 
of  every  fact  essential  to  confer  jurisdiction  must  be  evi- 
denced by  its  record,  and  failing  to  thus  show  such  juris- 
dictional facts,  the  judgment  is  open  to  collateral  impeach- 
ment. The  judgment  of  such  a  court  can  receive  no  support 
from  presumptions,  as  in  case  of  a  judgment  of  a  court  of 
record,  for  nothing  will  be  presumed  to  be  within  its  juris- 
diction, and  the  falsity  of  the  recital  of  jurisdictional  facts 
may  be  shown  by  evidence  aliunde,  the  memorials  of  their 
transactions  are  not  unimpeachable  even  when  collaterally 
called  in  question. 

(Smith  v.  Clausmier.  136  Ind.  105  —  35  N.  E.  Rep.  904;  Dry  Goods 
Co.  v.  Fuller,  5S  Ark.  181  —  24  S.  W.  Rep.  108;  King  v.  Bates,  so  Mich. 
367  _  45  x.  W.  Eep.  147:  Bank  v.  Wilcox,  15  R.  I.  258  —  3  Atl.  Rep. 
211;  Emery  v.  Royal.  117  Ind.  299  —  20  X.  E.  Rep.  150:  Smith  v.  Fin- 
ley.  52  Ark.  373  —  12  S.  W.  Rep.  782:  Hollinir^.vorth  v.  Stone.  90  Ind. 
244;  Newman  v.  Manning,  89  Ind.  422;  Tucker  v.  Han-is.  13  Ga.  1  —  58 
Am.  Dec.  4S8:  Palmer  v.  Oakley.  2  Doup.  433  —  47  Am.  Dec.  41:  Cooper 
v.  Sunderland.  3  Iowa.  114  —  66  Am.  Dec.  52:  Sears  v.  Terry.  26  Conn. 
273;  Sanborn  v.  Fellows.  22  X.  H.  4S9;  Corwin  v.  Merritt.  3  Barb.  343; 
Saladay  v.  Bainhill.  29  Iowa.  555.) 

But  in  the  absence  of  a  provision  of  statute  requiring  that 
the  jurisdictional  facts  shall  affirmatively  appear  in  the 
minutes  or  other  records  of  the  court,  it  has  been  held  that 
the  facts  necessary  to  show  that  a  court  of  limited  jurisdic- 
tion has  acted  within  its  jurisdiction  may  be  proved  by 
other  competent  evidence,  though  this  does  not  extend  to 
such  facts  as  the  law  requires  the  court  to  set  forth  upon  the 
record.  We  are  inclined  to  think  this  doctrine  to  be  opposed 
to  the  current  of  authority,  but  consider  it  consonant  with 
reason  and  sound  in  principle. 

(In  re  Williams,  102  Cal.  70  —  36  Pae.  Rep.  407:  District  v.  Goldman, 
65  Cal.  638  —  4  Pac.  Rep,  676;"  Jolly  v.  Foltz.  34  Cal.  321;   Williams  v. 


PRINCirLES    INVOLVED    IN    JURISDICTIONAL    INQUIRIES.    171 

Camniack,  27  Miss.  209  —  61  Am.  Dec.  50S;  Van  Duzen  v.  Sweet,  51 
N.  Y.  278;  Behymer  v.  Nordloh,  12  Colo.  352;  Liss  v.  Wilt  oxen,  2 
Colo.  85.) 

But  when  the  necessary  facts  touching  the  acquisition  of 
jurisdiction  affirmatively  appear  upon  the  face  of  the  record,, 
the  adjudication  of  an  inferior  judicial  tribunal  are  regarded 
as  favorable  as  judgments  of  courts  exercising  a  more  general 
jurisdiction,  and  are  not  subject  to  collateral  impeachment. 

(Leonard  v.  Sparks,  117  Mo.  103  —  22  S.  \Y.  Rep.  899;  Heck  v.  Martin, 
75  Tex.  469  —  13  S.  W.  Rep.  51;  Turner  v.  Conkey,  132  Ind.  248  —  31 
N.  E.  Rep.  777;  Simmons  v.  Saul,  13S  U.  S.  439  —  11  Sup.  Ct.  Rep.  369; 
Grunsenmeyer  v.  Logansport,  76  Ind.  549;  Dore  v.  Dougherty,  72  Cal. 
232  —  13  Pac.  Rep.  621;  Long  v.  Burnett,  13  Iowa,  28  —  81  Am.  Dec. 
420.) 

Courts  of  Probate  Jurisdiction. 

§  ISC.  Courts  of  probate,  orphans'  courts  or  by  whatever 
name  known,  having  the  administration  of  the  estates  of 
decedents  and  of  persons  under  disability,  are  in  many  states 
considered  courts  of  special  or  limited  jurisdiction,  while 
in  other  states  they  are  regarded  as  of  general  juris- 
diction of  the  class  of  cases  over  which  they  are  author- 
ized by  law  to  act.  Where  such  courts  are  of  limited  or 
special  jurisdiction,  it  is  incumbent  upon  him  who  claims 
title  under  their  adjudications  to  show  affirmatively  that  all 
the  essential  steps  necessary  to  confer  jurisdiction  have  been 
taken,  as  no  presumptions  will  aid  the  proceedings.  But 
such  courts  are  not  so  regarded  except  in  a  minority  of  the 
states. 

(Tracy  v.  Roberts,  SS  Me.  310  —  34  Atl.  Rep.  68:  Dorrance  v."  Rayns- 
ford,  67  Conn.  1  —  34  Atl.  Rep.  706:  Bank  v.  Wilcox.  15  R.  I.  258  — 
3  Atl.  Rep.  211;  Elwood  v.  Northrup,  106  N.  Y.  172  —  12  N.  E.  Rep. 
590 ;  Sloan  v.  Sloan,  25  Fla.  53  —  5  So.  Rep.  603 ;  Railway  Co.  v.  Judge, 
63  Mich.  676  —  30  N.  W.  Rep.  69S;  In  re  Hawley,  104  N.  Y.  250  —  10 
N.  E.  Rep.  352;  Williams  v.  Morton,  3S  Me.  47  —  61  Am.  Dec.  229; 
Root  v.  McFerrin.  37  Miss.  17  —  75  Am.  Dec.  49;  Tucker  v.  Harris,  13 
Ga.  1  —  58  Am.  Dec.  4S8;  Goforth  v.  Langworthy,  4  Ohio.  129  —  19 
Am.  Dec.  588.) 

On  the  other  hand,  according  to  the  weight  of  authority, 
and  in  a  majority  of  the  states,  courts  exercising  probate 
jurisdiction,  by  whatever  named  designated,  while  of  special 
jurisdiction  are  nevertheless  regarded  as  courts  of  general 


1T2  VOID   JUDICIAL    AXD    EXECUTIOX    SALES. 

jurisdiction  of  that  peculiar  class  of  cases  and  their  orders 
and  judgments  are  upheld  by  similar  presumptions  ap- 
plicable to  other  courts  of  general  jurisdiction. 

(Lyne  v.  Sanford,  82  Tex.  58  —  19  S.  W.  Rep.  S47:  Sherwood  v. 
Baker.  105  Mo.  47:2  —  10  S.  \Y.  Rep.  938;   Pike  v.  Chicago,   155  HI:  656 

—  40  N.  E.  Rep.  567;  Davis  v.  Hudson,  29  Minn.  27  —  11  N.  W.  Rep. 
136;  Camden  v.  Plain.  91  Mo.  117  —  4  S.  W.  Rep.  86;  Simmons  v.  Saul, 
138  U.  S.  439  —  11  Sup.  Ct.  Rep.  309:  McMillan  v.  Reeves.  102  N.  c.  550 

—  9  S.  E.  Rep.  449:  Currie  v.  Franklin.  51  Ark.  338  —  11  S.  W.  Rep. 
477:  Sullivan  v.  Rabb,  S6  Ala.  433  —  5  So.  Rep.  746;  Succession  of 
Bellande.  41  La.  Ann.  491  —  0  So.  Pep.  505;  Blair  v.  Sennett,  134  111. 
78  —  21  X.  E.  Rep.  969;  Cowens  v.  Tool.  36  Iowa,  S2;  Doolittle  v. 
Holton.  2s   Vt.   819  —  67  Am.   Dec.   745.) 

CONCLUSIVENESS    OF    JUDGMENTS    AXD    DE- 
CREES. 

Parties  and  Privies. 

§  187.  In  actions  in  personam  the  doctrine  of  former  ad- 
judication is  limited  to  the  parties  and  privies  pursuant  to 
an  ancient  and  undisputed  rule,  but  he  who  seeks  to  invoke 
this  doctrine  must  of  necessity  be  one  who  tendered  to  the 
other  an  issue  to  which  the  other  could  have  joined  an  issue 
of  law  by  demurrer  or  an  issue  of  fact  by  plea  or  answer. 

(Jones  v.  Vert.  121  Ind.  140  —  22  X.  E.  Rep.  882.) 

It  is  a  universal  rule  of  law  that  not  only  the  parties  to 
the  suit  but  also  those  who  are  in  privity  with  them  are 
concluded  by  the  judgment  of  a  court  of  competent  juris- 
diction on  all  questions  properly  adjudicated  by  it. 

(Barrick  v.  Horner.  7s  Md.  253  —  27  Atl.  Rep.  1111;  Harnock  v.  Har- 
low, 90  Cal.  298  —  31  Pac.  Rep.  166;  Morrill  v.  Morrill,  20  Ore.  90  —  25 
Pac.  Pep.  302:  Peck  v.  McLean.  30  Minn.  228  —  30  X.  W.  Rep.  759: 
Woods  v.  Coal  Co.,  84  Ala.  5'  I  3  So.  Rep.  175;  Gould  v.  Sternberg, 
128  111.  510  —  21  N.  E.  Rep.  52S.) 

And  the  adjudication  is  conclusive  between  the  parties  ami 
their  privies  when  the  court  had  jurisdiction  of  the  parties 
ami  subject-matter  of  the  action,  even  if  the  court  may  have 
proceeded  irregularly,  and  the  determination  thus  erroneous 
in  consequence  thereof. 

(Maloney  v.  Dewey,  12'J  I:!.  395  —  19  X.  E.  Rep.  848;  Norria  v.  He, 
152  111.  190  —  :;-  X.  P.  Rep.  762;  <  renshaw  v.  Julian,  26  S.  I  ,  283  —  2 


CO 


NCLUSIVENESS   OF   JUDGMENTS   AND   DECREES.  173 


S  E  Rep.  133;  Drake  v.  Ireland,  4  Utah,  192-7  Pac.  Rep.  714;  Griffin 
v.  Railway  Co.,  102  N.  Y.  449-7  N.  E.  Rep.  735;  Phillips  v.  Lewis, 
109  Ind.  62  —  9  \.   E.   Rep.  395.) 

But.  if  the  judgment  was  rendered  by  a  court  having  no 
jurisdiction  of  the  subject-matter  or  of  the  parties  against 
whom  it  is  rendered  it  is  not  conclusive  upon  the  very  plain- 
est of  fundamental  principles. 

(Telegraph  Co.  v.  Taylor.  84  Ga.  408-11  S.  E.  Rep.  396;  Hancock 
v  Flynn  8  N.  Y.  Supp.  133;  Arthur  v.  Israel.  15  Colo.  147  —  25  Pac. 
Rep.  81;  Hope  v.  Blair,  L05  Mo.  85-16  S.  W.  Rep.  595;  Dailey  v. 
Sharkey.  29  Mo.  App.   518.) 

Nor  is  a  party  conclusively  bound  by  a  decree  inoperative 
and  void  for  uncertainty. 

(Shepherd  v.  Pepper,  133  U.  S.  626  —  10  Sup.  Ct.  Rep.  43S.) 

The  judgments  of  courts  having  jurisdiction  to  pronounce 
them  are  considered  as  conclusive  upon  the  parties  and  those 
in  privity  with  them  because  an  opportunity  was  afforded 
to  those  to  assert  or  defend  their  rights  and  interests  prior 
to  the  rendition  of  such  judgment. 

(Axford  V.  Graham.  57  Mich.  422-24  N.  W.  Rep.  158;  Jones  v. 
Vert,  121  Ind.  140  —  22  N.  E.  Rep.  882.) 

Void  as  to  One  only  of  Several  Parties. 

§  188.  A  judgment  void  as  against  one  of  the  parties  by 
reason  of  jurisdictional  infirmity  because  of  want  of  process 
is  nevertheless  valid  against  other  parties  properly  before 
the  court.  Accordingly,  it  has  been  held  that  a  decree  of  sale 
which  is  a  nullity  as  against  the  mortgagor  for  want  of  juris- 
diction is  still  valid  as  against  the  mortgagee  plaintiff,  and 
the  purchaser  at  a  sale  under  the  decree  accedes  to  all  the 
rights  of  the  mortgagee  as  his  assignee,  upon  the  principle 
that  a  decretal  sale  passes  the  interest  of  all  parties  to  the 
suit,  thus  investing  the  purchaser  with  the  plaintiff's  rights 
though  no  title  or  rights  to  the  property  will  pass  by  the  sale 
other  than  that  evidenced  by  the  original  mortgage. 

(Dutcher  v.  Hobby,  86  Ga.  198-12  S.  E.  Rep.  356;  Townshend  v. 
Thompson,  139  N.  Y.  152-34  N.  E.  Rep.  891;  Jordan  V.  Sayre,  29  Fla. 
10o— 10  So.  Rep.   823.) 

In  what  Capacity  Judgment  Conclusive. 

§  189.   Where  the  entire  proceedings  in  the  cause  includ- 
ing the  judgment  run  against  the  defendant  and  purport  to 


174  VOID    JUDICIAL    AND    EXECUTION    SALES. 

bind  him  in  his  individual  capacity  it  is  of  no  binding  effect 
upon  him  as  a  trustee  nor  upon  the  trust  property  of  which 
he  holds  the  legal  title  as  such  fiduciary.  The  reason  of  the 
rule  is  that  the  beneficiary  can  not  be  affected  by  a  judg- 
ment in  a  proceeding  wherein  he  was  neither  actually  nor 
constructively  a  party  as  such. 

(Sonnenberg  v.  Steinbach,  9  S.  Dak.  518  —  70  N.  W.  Eep.  655;  Landon 
v.  Townshend,  112  N.  Y.  93  —  19  X.  E.  Rep.  424;  Colt  V.  Colt,  111  U.  S. 
566—  5  Sup.  C't.  Rep.  553;  Rathbone  v    Hooney,  58  N.  Y.  465.) 

The  rule  that  a  judgment  is  conclusive  on  a  party  only  in 
the  character  in  which  he  is  sued  also  applies  to  administra- 
tors, guardians  and  assignees,  for  when  sued  in  their  fidu- 
ciary capacity  it  will  not  conclude  them  personally,  the 
judgment  being  presumptively  only  conclusive  against  a 
party  in  the  character  in  which  he  has  been  sued. 

(Collins  v.  Hydon,  135  N.  Y.  320  —  32  N.  E.  Rep.  69;  Van  Cott  v. 
Prentice,  104  N.  Y.  45  —  10  X.  E.  Rep.  257;  McE-ernice  v.  Seaton,  111 
Ind.  56  —  12  N.  E.  Rep.  101.) 

Though  it  is  held  that  a  judgment  upon  the  merits  against 
a  claim  set  up  by  a  defendant  as  a  trustee  will  conclude  him 
from  subsequently  prosecuting  a  suit  upon  the  same  claim 
in  his  individual  capacity. 

(Wright  v.  Miller,  147  X.  Y.  362  —  41  N.  E.  Rep.  698.) 

Among  parties  concluded  are  those  who  caused  a  suit  to 
be  instituted  and  prosecuted,  or  are  substantially  parties,  as 
well  as  those  who  affirmatively  appear  as  parties  by  the 
record. 

(Bennitt  v.  Mining  Co.,  119  111.  9  —  7  N.  E.  Rep.  498;  Lyon  v.  Sand- 
ford,  4?  N.  J.  Eq.  411  —  7  Atl.  Rep.  869;  Worley  v.  Hineman,  6  Ind. 
App.  240  —  33  N.  E.  Rep.  260;  Strong  v.  Insurance  Co.,  62  Mo.  2S9  — 
21  Am.  Rep.  417;  Conger  v.  Chilcote  42  Iowa,  24:  Landis  v.  Hamilton, 
77  Mo.  554;  Costle  v.  Xoyes,  14  X.  Y.  335.  * 

Suit  Commenced  After  Defendant's  Deatn. 

§  190.  The  judgment  rendered  in  a  suit  instituted  subse- 
quent to  the  death  of  the  debtor  defendant  is  absolutely  void, 
and  by  reason  of  its  nullity  concludes  no  one.  As  a  matter  of 
necessity  such  a  suit  manifestly  must  be  founded  upon  con- 
structive service  of  process,  but  if  the  defendant  is  dead  at 
the  time  he  is  constructively  notified  of  the  pendency  of  the 


CONCLUSIVENESS   OF   JUDGMENTS    AND   DECREES.  175 

suit  there  is  in  fact  no  one  to  notify  and  the  alleged  pub- 
lished notice  is  tantamount  to  no  notice  at  all.  Hence  there 
is  no  jurisdiction  to  render  judgment. 

(Richards  v.  Thompson,  4:;  Kan.  209-23  Pac.  Rep.  106;  Craven  v. 
Bradley.  51  Kan.  336  —  32  Pac.  Rep.  1112.) 

Proceedings  Against  Unknown  Heirs. 

§  191.  The  judgment  in  a  proceeding  against  the  unknown 
heirs  and  devisees  of  one  presumed  from  a  continued  absence 
of  over  thirty  years  To  be  dead,  and  finding  him  to  be  dead 
and  making  a  disposition  of  his  property,  is  an  unconditional 
nullity  in  so  far  as  his  interest  in  the  property  is  concerned 
if  in  fact  he  was  alive  and  was  not  a  party  to  the  proceed- 
ings and  the  court  had  no  jurisdiction  over  him. 

(Burton  v.  Perry,  146  111.  71  —  34  N.  E.  Rep.  60.) 

Upon  what  Matters  Conclusive. 

§  192.  The  rule  supported  by  the  weight  of  authority  is 
that  a  judgment  or  decree  is  conclusive  between  the  parties 
and  their  privies  upon  all  those  matters  properly  involved 
and  which  were  or  might  have  been  raised,  litigated  and  de- 
termined as  incident  to  or  essentially  connected  with  the 
subject-matter  of  the  litigation. 

(Robv  v.  Canal  &  Dock  Co..  165  111.  277-46  N.  E.  Rep.  214:  Iron 
Co.  v.  Rarig,  93  Va.  595  —  25  S.  E.  Rep.  S94;  Railway  Co.  v.  Railway 
Co.,  164  111.  88  —  45  N.  E.  Rep.  488 ;  Griffin  v.  Railway  Co.,  102  N.  Y. 
449_7  N.  E.  Rep.  735:  Bailey  v.  Bailey.  155  111.  551  —  4  N.  E.  Rep. 
394;  Kurtz  v.  Carr,  105  Ind.  574  —  5  N.  E.  Rep.  692;  Parkhurst  V.  Sum- 
ner, 23  Vt.  538  —  56  Am.  Dec.  94.) 

As  to  the  issues  raised  and  determined  a  judgment  is  con- 
clusive between  the  parties  on  the  same  side  of  the  cause  to 
the  same  extent  as  if  they  had  appeared  in  the  action  as 
opposing  parties. 

(Nave  v.  Adams  107  Mo.  414  —  17  S.  W.  Rep.  958;  Harmon  v.  -Au- 
ditor. 123  111.  122  —  13  N.  E.  Rep.  16;  Parkhurst  v.  Randall,  110  N.  Y. 
386  —  18  N.  E.  Rep.   123.) 

But  it  is  held  that  where  one  of  two  defendants  joins  in  an 
issue  with  the  plaintiff,  the  determination  of  such  issue  in 
such  defendant's  favor  is  not  a  determination  of  the  ques- 
tion between  the  defendants. 

(Jones  v.  Vert,  121  Ind.  140-22  N.  E.  Rep.  8S2.) 


1T6  VOID    JUDICIAL    AND    EXECUTION    SALES. 

So  where  one  mortgage  is  made  as  security  for  several 
promissory  notes  and  such  notes  are  all  transferred  to  dif- 
ferent parties,  the  transfer  is  in  effect  an  assignment  pro 
tanto  of  the  mortgage.  All  such  holders  must  be  made  par- 
ties to  an  action  for  the  enforcement  of  the  mortgage  lien, 
or  else  it  is  no  bar  to  a  subsequent  foreclosure  by  the  holder 
of  any  of  the  notes,  who  was  not  originally  made  a  party. 

Todd  v.  Cremer,  36  Neb.  430  —  54  X.  W.  Rep.  674.) 

Who  are  Privies. 

§  193.  That  a  judgment  of  a  court  of  competent  jurisdic- 
tion having  jurisdiction  of  the  parties  and  subject-matter 
is  conclusive,  while  standing  unreversed,  upon  the  parties 
and  their  privies  is  an  undisputed  proposition  of  law.  but 
it  is  sometimes  a  matter  of  nice  distinction  to  determine  who 
are  privies.  Ordinarily  a  privy  to  a  judgment  or  decree  is 
one  who  has  succeeded  to  or  acquired  rights  in  the  property 
affected  subsequent  to  the  inauguration  of  the  proceedings 
in  the  particular  suit,  and  from  one  who  is  a  party  thereto. 
Privies  are  persons  claiming  under  or  in  right  of  the  original 
parties,  thus  being  their  successors  in  interest,  either  by 
reason  of  blood  or  representation,  or  by  grant  or  assignment 
of  the  subject-matter  after  suit  brought. 

(Orthwin  v.  Thomas.  127  111.  554  —  21  X.  E.  Rep.  130;  Wamock  v. 
Harlow.  96  Cal.  29S  —  31  Pac.  Rep.  166;  Hill  v.  Bain,  15  R.  I.  873  — 
23  Atl.  Rep.  44;  Lipscomb  v.  Postell,  38  Miss.  476  —  77  Am.  Dec.  651; 
Winston  v.   Westfield,  22  Ala.  760  —  58  Am.   Dec.   278.) 

Effect  where  Judgment  or  Decree  is  Void. 

§  194.  To  establish  title  to  property  by  virtue  of  judicial 
proceedings  two  principal  sets  of  circumstances  must  be 
looked  to,  viz.,  (a)  the  first  and  all-important  of  these  is 
whether  the  judgment  under  which  the  sale  was  made  is  a 
valid  one,  and  (b )  whether  the  proceedings  of  sale  were  made 
in  conformity  with  the  requirements  of  law. 

Back  of  the  judgment  the  purchaser  need  not  go  in  order 
to  ascertain  its  justness  upon  the  facts  upon  which  it  was 
rendered,  nor  need  he  be  concerned  as  to  the  correctness  of 
the  conclusions  of  law,  provided  only  that  his  rights  have 
been  derived  while  the  judgment  or  decree  was  not  stayed 
by  supersedeas,  nor  reversed  or  annulled  on  appeal,  nor  va- 
cated by  a  direct  suit  in  equity.     A  different  question   how- 


CONCLUSIVENESS    OF   JUDGMENTS    AND    DF.fi:;  171 

ever  is  presented  in  case  the  judgment  is  not  merely  irregu- 
lar or  voidable,  but  absolutely  void  for  inherent  jurisdictional 
defect,  in  which  case  the  title  ostensibly  founded  upon  it 
must  fall  to  the  ground  whenever  the  inherent  invalidity 
is  suggested. 

Want  of  jurisdiction  of  either  the  person  or  the  subject- 
matter  being  apparent  upon  the  face  of  the  record,  as  a 
general  rule,  the  judgment  is  unqualifiedly  without  legal 
efficacy,  and  manifestly  insufficient  as  a  foundation  for  the 
acquisition  of  rights  thereunder. 

(Moyer  v.  Bucks.  2  Ind.  App.  571  —  2S  N.  E.  Rep.  992 ;  Kingman  v. 
Paulson,  126  Ind.  507  —  26  N.  E.  Rep.  393;  Seaman  v.  Galligan,  8  S. 
Dak.  277  —  66  N.  W.  Rep.  458 ;  Ex  parte  Gray,  48  S.  C.  566  —  26  S.  E. 
Rep.  786;  Railway  Co.  v.  Hubbard.  116  Ind.  193  —  18  N.  E.  Rep.  611; 
Quarle  v.  Abbett.  102  Ind.  233  —  1  N.  E.  Rep.  476;  Hope  v.  Blair,  105 
Mo.  85  —  16  S.  W.  Rep.  595;  Furgeson  v.  Jones,  17  Ore.  204  —  20  Pac. 
Rep.  842;  Wayne  v.  Caldwell.  1  S.  Dak.  483  —  47  N.  W.  Rep.  547.) 

But  the  judgment  of  a  court  of  general  jurisdiction  is  not 
void  so  as  to  be  open  to  successful  collateral  assault  unless 
it  affirmatively  appears  from  the  whole  record  that  the  court 
acted  without  jurisdiction  in  pronouncing  it.  The  fact  that 
the  court  transcended  its  powers  must  be  disclosed  upon  an 
inspection  of  the  record  in  order  to  make  the  judgment  void 
upon  collateral  attack.  This  is  the  rule  deducible  from  the 
consensus  of  all  judicial  enunciations,  and  best  accords  with 
principle  and  reason.  The  judgment  though  void  in  fact 
because  rendered  without  jurisdiction  can  not  be  treated  as 
a  mere  nullity  when  the  infirmity  is  not  apparent  upon  the 
record,  which  is  either  silent  as  to  the  acquisition  of  juris- 
diction or  does  not  itself  affirmatively  impeach  the  juris- 
diction of  the  court. 

(Brown  v.  Wilson,  21  Colo.  309  —  40  Pac.  Rep.  688;  Williams  v. 
Haynes,  77  Tex.  283  —  13  S.  W.  Rep.  1029;  Pioneer  Land  Co.  v.  -Mad- 
dux. 109  Cal.  633  —  42  Pac.  Rep.  295;  People  v.  Thomas,  101  Cal.  57 1  — 
36  Pac.  Rep.  9;  Hahn  v.  Kelly,  34  Cal.  391  —  94  Am.  Dec.  742;  Wil- 
kinson v.  Schoonmaker,  77  Tex.  615  —  14  S.  W.  P.p.  223;  In  re  Eich- 
boff,  101  Cal.  600  —  36  Pac.  Rep.  11;  Coil  v.  Haven,  30  Conn.  190  — 
79  Am.  Dec.  244;  Finneran  v.  Leonard.  7  Allen,  54  —  83  Am.  Dec.  665; 
Granger  v.  Clark,  22  Me.  128;  Cook  v.  Darling.  IS  Pick.  398;  CaUen  v. 
Ellison,  13  Ohio  St.  446  —  82  Am.  Dec.  448 ;  McDonald  v.  Leewright,  31 
Mo.  29  —  64  Am.  Dec.  166;  Johnston  v.  Jones,  2  Neb.  126;  Wilcox  v. 
Kassick,  2  Mich.  165.) 
12 


178  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

Judgments  Outside  the  Issues  not  Binding. 

§  195.  Judgments  and  decrees  outside  of  the  issues  are 
at  least  to  that  extent  void  because  rendered  without  juris- 
diction, and  as  the  defect  is  apparent  upon  the  face  of  the 
record,  as  a  matter  of  necessity  collateral  impeachment  is 
always  available  in  such  case.  In  so  far  as  it  attempts  to  ad- 
judicate matters  not  in  issue  a  decree  or  judgment  is  there- 
fore  inoperative. 

(Metcalf  v.  Hart,  3  Wyo.  513  —  27  Pac.  Rep.  000:  Purdy  v.  Hall,  134 
111.  298  —  25  N.  E.  Rep.  645;  Sanders  v.  Logue,  88  Tenn.  355  —  12  S.  W. 
Rep.  722;  Merrill  v.  Washburn,  83  Me.  189  —  22  Atl.  Rep.  118;  Pille  v. 
Emmons,  58  Kan.   118  —  48  Pac.  Rep.  569.) 

And  a  void  judgment  where  the  infirmity  is  apparent  upon 
the  face  of  the  record  will  not  constitute  a  lien  upon  the  real 
property  of  the  judgment  debtor  in  any  event. 

(White  v.  Foote  Lumber  Co.,  29  W.  Ya.  385  —  1  B.  E.  Rep.  572.) 

And  where  the  infirmity  in  the  judgment  is  a  jurisdic- 
tional one  the  fact  that  the  land  sold  under  it  has  passed  into 
the  hands  of  third  parties  will  not  defeat  a  recovery  of  the 
property,  as  the  judgment  had  no  effect  upon  the  property  or 
its  title. 

(Great  West  Mining  Co.  v.  Mining  Co.,  12  Colo.  46  —  20  Pac.  Rep.  771.) 

Actions  in  Personam  and  Proceedings  in  rem  Distinguished. 

§  196.  Pursuant  to  an  elementary  and  fundamental  prin- 
ciple of  jurisprudence  notice  of  the  pendency  of  a  suit  in 
personam  and  an  opportunity  to  be  heard  is  an  indispensable 
requisite  before  the  court  is  vested  with  authority  to  pro- 
nounce judgment  against  a  defendant.  The  rule  is  ancient 
and  universal  that  no  one  can  be  personally  bound  by  a  judi- 
cial sentence  until  he  has  first  had  his  day  in  court,  by  which 
is  meant  that  he  must  be  first  duly  cited  to  appear  and  has 
been  given  an  opportunity  to  be  heard  in  his  defense.  A 
judgment  purporting  to  personally  bind  the  judgment  de- 
fendant in  the  absence  of  such  citation  and  opportunity  to 
be  heard  is  wanting  in  the  essential  attributes  of  a  judicial 
determination  and  wholly  inoperative. 

(Evans  v.  Johnson,  39  W.  Va.  299;  19  S.  E.  Rep.  623;  Furgeson  v. 
Jones,  17  Ore.  204  —  20  Pac.  Rep.  842;  Dorrance  v.  Raynsford,  67  Conn. 
1  —  34  Atl.  Rep.  706.) 


CONCLUSIVENESS    OF   JUDGMENTS   AND    DECREES.  179 

The  difference  between  actions  in  personam  and  proceed- 
ings in  rem  is  one  of  a  radical  nature  and  of  much  import- 
ance.    Jurisdiction  in  the  latter  class  of  cases  attaches  not 
by  reason  of  notice  or  citation  to  any  individual,  though 
some  notice  is  required  to  fully  clothe  the  court  with  full 
power  to  adjudicate,  but  by  virtue  of  the  seizure  or  attach- 
ment  of  the   property  merely,   which   being  thus   brought 
within  the  jurisdiction  of  the  tribunal  becomes  subject  to  its 
final  disposition.     Interested  parties  are  presumed' to  be  ap- 
prised of  the  proceedings  from  the  very  fact  of  seizure  and 
the  published  notice  or  usual  proclamation,  but  no  personal 
notice  need  be  given.    All  that  is  required  is  some  act  carry- 
ing notice  of  the  proceedings  in  a  general  way  to  whom  it 
may  concern.     The  statute  generally  regulates  and  prescribes 
in  this  regard.     In  judgments  in  personam  only  the  parties 
and  their  privies  are  concluded  by  the  judgment,  but  in  ac- 
tions in   rem  all  the  world  is  bound  by  the  adjudication. 
While  it  is  said  that  jurisdiction  in  proceedings  in  rem  at- 
taches by  seizure  of  the  res  yet  the  mere  seizure  is  not  con- 
sidered sufficient  to  warrant  the  court  to  proceed  to  judgment, 
for  a  sentence  pronounced  from  the  simple  fact  of  seizure 
alone  would  be  considered  merely  as  an  arbitrary  edict  of  a 
judicial  officer  and  not  a  judicial  determination  upon  the 
question  of  condemnation  or  forfeiture. 

fHassall  v.  Wilcox.  130  IT.  S.  493—9  Sup.  Ct,  Eep.  590;  Hcidritter 
V.  Oil  Cloth  Co..  112  U.  8.  294  —  5  Sup.  Ct.  Rep.  135:  The  Queen  of  the 
Pacific.  61  Fed.  Eep.  213;  Windsor  v.  McVeigh,  93  U.  S.  274;  filler  v. 
United  States.  11  Wall.  268;  Cooper  v.  Reynolds.  10  Wall.  317:  The 
Clohe.  2  Rlatchf.  427;  Bradstreet  v.  Neptune  I.  Co..  3  *umn.  601  ;  P.ailev 
v.  Sundberg.  43  Fed.  Rep.  81;  State  v.  Railway  Co..  10  Nev.  47:  The 
Rio  Grande,  23  Wall.  458;  Noble  v.  Thompson  Oil  Co..  79  Pa.  St.  354; 
Street  v.  Insurance  Co.,  12  Rich.  13  —  75  Am.  Dec.  714.) 

Proceedings  in  mortgage  foreclosure  and  sale  under  decree 
therein,  notwithstanding  they  operate  upon  the  res,  are  never- 
theless against  those  made  defendants  and  are  binding  upon 
none  except  such  as  are  named  as  defendants.  Sueh  proceed- 
ings are  sometimes  and  perhaps  very  properly  designated  as  pro- 
ceedings quasi  in  rem.  So  in  several  states  land  can  not 
be  sold  for  delinquent  taxes  except  under  the  judgment  of  a 
court  of  competent  jurisdiction,  the  judgment  being  usually 
obtained  in  a  somewhat  summary  manner,  and  such  pro- 


180  VOID    JUDICIAL    AND    EXECUTION    SALES. 

ceedings  are  regarded  as  strictly  in  rem,  while  in  others  they 
are  considered  as  allied  to  proceedings  for  the  enforcement 
of  a  contract  lien,  the  judgment  and  sale  being  binding  upon 
the* defendants  named  only.  A  similar  rule  obtains  in  actions 
for  the  enforcements  of  liens  for  street  improvements. 

(Wood  v.  Brady,  150  IT.  S.  IS  — 14  Sup.  Ct.  Eep.  6;  Brady  v.  Burke, 
90  Cal.  1  —  27  Pae.  Rep.  52.) 

Questions  of  Title  Conclusively  Determined. 

§  197.  It  is  a  general  principle  of  law  that  a  judgment  of 
a  court  of  competent  jurisdiction  is  a  finality  in  respect  to 
the  claim  or  demand  in  controversy,  where  jurisdiction  of 
the  parties  and  subject-matter  has  been  properly  conferred. 
In  such  case  the  parties  and  all  who  are  in  privity  with 
them  are  concluded  by  the  adjudication,  not  only  as  to  every 
matter  which  was  actually  offered  and  received  either  to  sus- 
tain or  defeat  the  claim  or  demand,  but  also  as  to  any  and 
all  other  matters  incidentally  connected  with  the  subject- 
matter  of  the  litigation  and  that  are  admissible  and  which 
might  have  been  but  were  not  offered  in  evidence  for  such 
purpose. 

(Bissell  v.  Spring  Valley  Township.  124  U.  S.  225  — S  Sup.  Ct.  Eep. 
495:  Lorillard  v.  Clyde,  122  X.  Y.  41  —  25  X.  E.  R<>p.  292;  Denver  v. 
Middough,  12  Colo.  434  —  21  Pac.  Rep.  565;  Hobby  v.  Bunch.  S3  Ga. 
1  —  10  S.  E.  Rep.  113:  State  v.  Branch,  134  Mo.  592  —  56  Am.  St.  Rep. 
533;  Cromwell  v.  County  of  Sac.  94  U.  S.  351;  Russell  v.  Place,  94  U.  S. 
60G. 

Consequently  where  a  suit  was  brought  to  subject  the  lands 
of  the  defendant  to  sale  for  the  satisfaction  of  the  plaintiff's 
claim,  a  decree  in  his  favor  is  final,  if  no  appeal  is  taken 
therefrom,  and  the  defendant  can  not  have  the  same  issue  re- 
tried in  another  and  independent  suit  founded  upon  a  title 
which  he  might  have  but  did  not  set  up  in  the  first  suit. 
Xot  having  urged  such  title  in  the  original  suit  he  is 
estopped  from  ever  afterward  setting  it  up. 

(Reed  v.  Douglass,  74  Iowa.  244  —  37  X.  W.  Rep.  181;  Dowell  v.  Ap- 
plegate,   152  U.  S.   327  —  14  Sup.  Ct.  Rep.   611.) 

So  where  in  an  action  the  title  and  right  to  possession  are 
in  issue,  litigated  ami  determined,  the  judgment  ultimately 
entered  becomes  the  highest  evidence  upon  all  questions  thus 
adjudicated,  both  as  to  title  and  right  of  possession.     xVnd 


CONCLUSIVENESS   OF   JUDGMENTS    AND   DECK  1S1 

all  defenses,  rights  and  titles  which  a  defendant  may  have 
he  must  urge  in  such  action  or  be  thereafter  precluded  from 
ever  asserting  them  against  the  plaintiff,  or  those  in  privity 
with  him. 

(Harmon  v.  Auditor.  123  III.  122  —  13  X.  E.  Rep.  161;  Malloney  v. 
Horan,  46  X.  Y.  110  —  10  Am.  Rep.  335;  Fischli  v.  Fischli,  1  Blackf. 
360  —  12  Am.  Dec.  231;  Snapp  v.  Snapp,  s7  Ky.  554  —  9  S.  W.  Rep.  705; 
Cayce  v.  Powell.  20  Tex.  767  —  7:!  Am.  Dec  211;  Todlock  v.  Eceles,  20 
Tex.  782  —  73  Am.  Dec.  213;  Nichols  v.  Dibrell,  01  Tex.  540;  Miller  v. 
Sherry.  2  Wall.  237;  Chilson  v.  Reeves,  29  Tex.  281.) 

Thus  it  was  held  that  where  in  an  action  involving  the 
title  and  possession  of  land  the  defendant  neglected  to  set 
up  his  homestead  right  therein,  he  could  not  assert  it  in  any 
subsequent  suit. 

(Graham  v.  Culver.  3  Wyo.  639  —  29  Pac.  Rep.  270.) 

So  long  as  it  stands  unopened  the  judgment  is  conclusive 
between  the  parties  and  those  in  privity  with  them,  not- 
withstanding it  is  clearly  erroneous,  but  not  void  for  want 
of  jurisdiction. 

(Stevens  v.  Reynolds,  143  Ind.  467  —  41  X.  E.  Rep.  931;  Morrill  v. 
Morrill,  20  Ore.  96  —  25  Pac.  Rep.  362;  Peck  v.  McLean,  36  Minn.  228  — 
30  X.  W.  Rep.  759:  People  v.  Holladay,  93  Cal.  241  —  27  Pac.  Rep.  1S6; 
Case  v.  Beauregard,  101  U.  S.  688.) 

Misconception  in  Form  of  Proceeding. 

§  198.  Impeachment  of  a  judgment  collaterally  as  an  ab- 
solute nullity  because  of  a  misconception  of  the  form  of  the 
proceedings  is  not  permissible  where  jurisdiction  was  ac- 
quired over  the  person  of  the  defendant  by  service  of  suffi- 
cient citation  and  the  court  has  jurisdiction  of  the  subject- 
matter.  Thus  where  a  .scire  facias  was  sued  out  instead  of 
bringing  an  ordinary  action. 

(Tnsley  v.  United  States,  150  U.  S.  512  —  14  Sup.  Ct.  158.) 

JSTor  is  the  objection  available  upon  collateral  impeach- 
ment that  the  proceedings  should  have  been  in  equity  instead 
of  at  law.  All  such  judgments  must  stand  unless  reversed 
on  appeal,  or  annulled  in  a  direct  proceeding  instituted  for 
that  purpose. 

(Reynes  v.  Dumont,  130  U.  S.  354  —  9  Sup.  Ct.  Rep.  48G;  Wylie  v. 
Coxe,  14  How.  415;  Clark  v.  Flint,  22  Pick.  231.) 


1S2  VOID    JUDICIAL    AXD    EXECUTION    SALES 

Conclusiveness  of  Judgments  as  to  Creditors. 

§  199.  As  a  general  rule  judgments,  excepting  those  in 
rem,  are  not  binding  upon  strangers,  the  parties  and  their 
privies  only  being  bound  thereby.  The  judgment  is  binding 
on  the  parties  even  when  it  was  obtained  by  fraud,  until  it 
is  vacated  by  some  direct  proceeding.  It  can  not  be  col- 
laterally attacked  for  fraud  or  collusion  in  its  rendition. 

(Hollinger  v.  Reeme,  138  Ind.  363  —  36  N.  E.  Rep.  1114.) 

But  it  is  well  established  that  a  third  person,  a  creditor  of 
a  defendant  for  instance,  may  assail  a  judgment  recovered 
against  such  defendant  as  fraudulent  and  collusive.  Even  if 
the  judgment  is  procured  through  the  fraud  or  collusion  of 
both  the  parties  for  the  purpose  of  defrauding  some  third 
person,  the  consequences  of  the  same  may  be  evaded  even  in 
a  collateral  proceeding  by  showing  the  fraud  or  collusion  by 
means  of  which  the  judgment  or  decree  was  procured. 
Hence  a  third  party  whose  rights  are  affected  by  the  entry  of 
a  fraudulently  obtained  judgment  may  show  that  there  was 
in  fact  no  debt  from  the  defendant  to  the  judgment  plaintiff. 

(Atlas  National  Bank  v.  More.  152  111.  528  — 38  N.  E.  Rep.  6S4; 
Palmer  v.  Martindell,  43  X.  J.  Eq.  90  —  10  Atl.  Rep.  802;  Smith  v. 
Cuyler,  7S  Ga.  654  —  3  S.  E.  Rep.  406;  Henderson  v.  Thornton.  37  Miss. 
448  —  75  Am.  Dee.  70 ;  Bergman  v.  Hutcheson,  60  Miss.  872 ;  Freyden- 
dall  v.  Baldwin,  103  111.  325;  Safford  v.  Weare,  142  Mass.  231  —  7  X.  E. 
Rep.  730;  Bunn  v.  AM,  29  Pa.  St.  387  —  72  Am.  Dee.  639;  Beeler  v. 
Bullitt,  3  A.  K.  Marsh.  280—13  Am.  Dec.  161;  Mackie  v.  Cairns.  5 
Cow.  547  —  15  Am.  Dec.  477;  Robinson  v.  Davis,  11  N.  J.  Eq.  302  —  69 
Am  Dec.  591.) 

What  Creditors  May  Avoid  a  Judgment. 

§  200.  Only  such  strangers  as  would  be  prejudiced  in  some 
pre-existing  right  should  the  judgment  be  sustained,  may  as- 
sail the  judgment  as  being  void  as  to  them  because  of  fraud 
or  collusion  in  obtaining  it.  These  are  permitted  to  impeach 
such  judgment  whenever  sought  to  be  enforced,  because  they 
have  no  standing  to  appeal  from  it  or  to  move  its  vacation  or 
reversal. 

(Ogle  v.  Baker,  137  Pa.  St.  37S  —  20  Atl.  Rep.  993;  Eureka  Iron  & 
Steel  Works  v.  Bresnahan,  60  Mich.  332  —  27  X.  W.  Rep.  524;  Palmer  v. 
McMaster,  8  Mont.  1S6  — 19  Pac.  Rep.  5S5;  Fall  River  v.  Riley.  140 
Mass.  488  —  5  X.  E.  Rep.  481;'  Mitchell  v.  Kintzer,  5  Pa.  St.  216  —  47 
Am.  Dec.  408.) 


EBB0NE01  3   JUDGMENT  WHERE  SALE  BEFORE   REVERSAL".   183 

So  if  a  judgment  creditor  seeks  to  avoid  a  conveyance  of 
the  judgment  debtor's  property  upon  the  ground  that  it  was 
made  with  a  fraudulent  intent,  the  grantee  of  the  judgment 
debtor  may  resist  the  attack  with  success  by  showing  that 
the  judgment  was  obtained  through  fraud  and  collusion. 

(Davis  v.  Davis.  20  Ore.   TS  —  2 5  Pac.  Rep.   140;   Fans  v.   Dark 
B.  Mon.  397  —  17  Am.  Dee.  77.) 

But  where  the  judgment  lien  attaches  before  the  convey- 
ance is  made  the  grantee  can  only  attack  the  judgment  for 
such  causes  as  are  available  to  the  judgment  debtor  himself. 

(Johns  v.  Pattee.  55  Iowa.  665  —  8  X.  W.  Rep.  663;  Gallaugher  v. 
Hebren,  35  La.  Ann.  829;    Eogg  \.  Link,  90  End.  346.) 

A  sale  of  personal  property  under  execution  issued  upon  a 
judgment  void  as  to  the  creditors  of  the  defendant  by  reason 
of  the  actual  fraud  and  collusion  of  all  parties  to  the  pro- 
ceeding passes  no  title  to  the  purchasing  execution  creditor 
even  if  actual  possession  of  the  property  was  given  him  at 
the  sheriff's  sale. 

(Pineus  v.  Reynolds,   19  Mont.  564  —  49  Pae.  Rep.  145.) 

But  a  judgment  is  not  subject  to  impeachment  on  the 
ground  of  fraud  by  a  party  or  privy  to  it  and  who  partici- 
pated in  the  fraud. 

(Dow  v.  Blake,  148  111.  76  —  35  X.  E.  Rep.  761;  Baugh  v.  Baugh,  37 
Mich.  59;  Atkinson  v.  Allen.  12  Vt.  619.) 

CONCLUSIVENESS  OE  ERRONEOUS  JUDGMENT 
WHERE   SALE  MADE  BEEORE  REVERSAL  OR 
VACATION. 
Sale  to  Stranger  Without  Notice. 

§  201.  Pursuant  to  a  universal  rule  of  law  a  sale  of  real 
or  personal  property  under  execution  upon  a  judgment  at 
law  or  under  a  decree  in  equity,  to  a  stranger  to  the  proceed- 
ings who  purchased  in  good  faith  and  without  notice,  prior 
to"a  reversal  on  appeal  of  such  judgment  or  decree  for  error, 
is  valid  and  the  purchaser's  title  is  unaffected  by  the  subse- 
quent reversal.  Hence  it  is  a  general  rule  that  titles  derived 
from  sales  consummated  under  the  authority  of  irregular  or 
erroneous  judgments  or  decrees  are  not  impaired  or  affected 
by  a  subsequent  reversal  where  no  supersedeas  bond  is  given 


184  TOID   JUDICIAL    AND    EXECUTION"    SALES. 

to  stay  all  proceedings  pending  the  appeal,  and  when  the 
purchase  is  made  by  a  third  person  who  bought  in  good  faith 
without  notice  and  for  value. 

(Hay  v.  Bennett.  153  111.  271  —  88  N.  E.  Eep.  645;  Garrittee  v.  Pop- 
lein.  73  Md.  322  —  20  Atl.  Eep.  1070;  Waterworks  v.  Drinkhouse,  95 
Cal.  220  —  30  Pae.  Rep.  218;  O'Brien  v.  Harrison.  59  Iowa,  6S6  — 12  X. 
W.  Rep.  256:  Withers  v.  Jacks.  79  Cal.  297  —  21  Pac.  Rep.  824;  Go  wen 
v.  Conlow.  51  Minn.  213  —  53  X.  W.  Eep.  365;  Keene  v.  Sallenback,  15 
Xeb.  200  —  18  X.  W.  Rep.  75;  Scudder  v.  Sargent,  15  Xeb.  102  —  17  X. 
W.  Eep.  369;  Hukins  v.  Kapf,  14  S.  W.  Eep.  1016;  Gibson  v.  Lyon,  115 
U.  S.  439  —  6  Sup.  Ct.  Eep.  129;  Taylor  v.  Coats,  32  Xeb.  30  —  48  X. 
W.  Eep.  964;  Eibelin  v.  Peugh,  126  Ind.  216  —  25  X.  E.  Eep.  1103; 
Reynolds  v.  Harris,  14  Cal.  667  —  76  Am.  Dec.  459;  McCormick  v.  Mc- 
Clure,  6  Blackf.  466  —  39  Am.  Dec.  441.) 

Under  no  considerations  however  can  this  rule  be  extended 
to  sales  under  judgments  affected  with  an  inherent  juris- 
dictional infirmity,  for  in  such  case  the  title  to  the  property 
sbly  sold  falls  to  the  ground  with  the  judgment,  be 
the  purchaser  a  stranger  or  not,  bona  fide  and  in  good  faith 
or  not. 

(McCracken  v.  Flanagan,  141  X.  Y.  174  —  36  X.  E.  Rep.  10;  Anderson 
v.  Gray,  134  111.  550  —  25  X.  E.  Rep.  843;  Paul  v.  Williams,  69  Tex. 
261  —  7  S.  W.  Rep.  357;  Mastin  v.  Gray,  19  Kan.  458  —  27  Am.  Rep. 
149;  Great  West  Mining  Co.  v.  Mining  Co.,  12  Colo.  46  —  20  Pac.  Rep. 
771;   Rimes  v.  Williams,   25  S.   E.  Rep.   6S5.) 

In  any  event  the  validity  of  a  bona  fide  sale  to  a  stranger 
to  the  record  under  a  judgment  reversed  for  error  or  irregu- 
larity is  dependent  upon  the  fact  that  the  sale  is  made  before 
the  reversal. 

(Bullard  v.  McArdle,  98  Cal.  355  —  33  Pac.  Rep.  193;  Frost  v.  Bank, 
70  X.  Y.  553  —  26  Am.  Rep.  627.) 

But  where  there  is  a  reversal  for  want  of  jurisdiction,  the 
fact  that  third  parties  have  purchased  under  the  belief  that 
the  judgment  is  valid  and  binding  between  the  parties,  is 
a  matter  of  inconsequential  moment,  for  this  will  not  defeat 
the  right  of  showing  the  want  of  jurisdiction. 

i  Ma>tin  v.  Gray,  19  Kan.  458 — 27  Am.  Rep.  149:  Ferguson  v.  Crawford, 
70  X.  Y.  253  —  26  Am.  Rep.  5S9;  Harshey  v.  Blackmar,  20  Iowa,  161  — 
89    Am.   Dec.   520.) 

Judgment  Creditor  as  Purchaser. 

02.   The  rule  that  a  subsequent  reversal  of  the  judg- 
ment has  no  effect  upon  the  title  of  a  purchaser  under  execu- 


SALES  SUBSEQUENT  TO  EXPIRATION  OF  JUDGMENT  LIEN.    185 

tion  or  decree  lias  no  application  to  a  case  where  the  judg- 
ment creditor  himself  becomes  the  purchaser,  nor  a  purchase 
made  by  the  plaintiff's  attorney  of  record  in  the  cause.  These 
purchase  with  notice  of  the  infirmity  and  are  not  regarded 
as  purchasers  in  good  faith,  being  bound  to  know  that  the 
proceedings  are  illegal,  and  can  not  hold  the  property  upon 
a  reversal  of  the  judgment. 

(Boos  v.  Morgan,  130  lnd.  305  —  30  N.  E.  Rep.  141;  Gould  v.  Sternberg, 
128  111.  510  —  21  N.  E.  Eep.  628;  Shirk  v.  Thomas,  121  lnd.  147  —  22 
N.  E.  Rep.  976;  Barney  v.  Clein,  15  Wash.  581  —  46  Pac.  Rep.  1037; 
Munson  v.  Plummer,  58  Iowa,  736  — 13  N.  W.  Rep.  71 ;  (Jalpin  v.  Page, 
IS  Wall.  350.) 

But  in  a  case  in  Kentucky  it  was  held  that  the  reversal  of  a 
decree  under  which  a  sale  of  land  was  made  does  not  vacate 
the  sale  if  the  court  had  jurisdiction  to  render  the  decree, 
and  the  title  of  the  purchaser  will  not  be  impaired  by  the 
reversal  notwithstanding  this  was  the  complainant  in  the  ac- 
tion himself.  As  far  as  our  researches  have  gone  this  case 
stands  alone. 

(Gossom  v.  Donaldson,  18  B.  Mon.  230  —  68  Am.  Dec.  723.) 

SALES  SUBSEQUENT  TO  EXPIRATION  OF  JUDG- 
MENT LIEN. 

Is  as  if  no  Lien  of  Judgment  Had  Ever  Existed. 

§  203.  In  nearly  every  state  where  judgments  are  liens 
upon  the  real  estate  of  the  judgment  debtor  the  statute  pre- 
scribes a  period  beyond  which  they  cease  to  have  the  force  of 
liens.  Execution  sales  made  within  the  period  during  which 
the  judgment  has  the  force  of  a  general  lien,  the  title 
relates  back  to  the  inception  of  the  lien,  and  rests  upon  the 
same.  But  a  different  question  is  presented  where  execu- 
tions have  issued  prior  to  the  expiration  of  the  time  pre- 
scribed by  law  for  the  continuance  of  the  lien,  hut  the  actual 
sale  thereunder  did  not  take  place  until  subsequent  thereto. 
Beyond  question  the  weight  of  authority  is  to  the  effect  that 
the  execution  and  levy  can  not  extend  the  lien  beyond  the 
statutory  period,  being  a  distinctive  creature  of  statute  de- 
pendinc:  exclusively  upon  legislation  for  its  life  and  force, 
and  the  priority  acquired  by  the  judgment  can  not  be  pre- 
served unless  the  sale  is  made  while  the  judgment  lien  exists. 


186  VOID   JUDICIAL    AND    EXECUTION    SALES. 

Accordingly,  the  title  derived  at  a  sale  made  after  the 
expiration  of  the  judgment  lien  is  in  effect  the  same  as  if  the 
judgment  had  never  been  a  lien  upon  the  land,  and  therefore 
a  junior  judgment  being  still  a  lien  takes  priority.  The  lien 
can  not  be  prolonged  by  the  court  beyond  the  period  fixed 
by  law. 

(Shirk  v.  Thomas,  121  Ind.  147  —  22  N.  E.  Eep.  976;  Wells  v.  Bower, 
126  Ind.  115  —  25  N.  E.  Eep.  603;  McAffee  v.  Eeynolds,  130  Ind.  33  — 
28  N.  E.  Eep.  423;  Albee  v.  Curtis.  77  Iowa,  644  —  52  N.  W.  Eep.  508; 
Spencer  v.  Haug,  45  Minn.  231  —  47  N.  W.  Eep.  794;  Holliday  v.  Bruner, 
153  Penn.  St.  262  —  25  Atl.  Eep.  1128;  Shanklin  v.  Sims,  110  Ind.  143  — 
11  N.  E.  Eep.  32;  Bagley  v.  Ward,  37  Cal.  121  —  99  Am.  Dee.  256;  Isaac 
v.  Swift,  10  Cal.  71  —  70  Am.  Dec.  698;  Petit  v.  Shepherd,  5  Paige,  493  — 
28  Am.  Dec.  437;  Trapnall  v.  Eichardson,  13  Ark.  543  — 5S  Am.  Dec. 
338;  Harman  v.  May,  40  Ark.  146;  Pasom  v.  Rhyme,  82  N.  C.  149; 
Rupert  v.  Dantzler,  12  S.  &  M.  697;  Dickinson  v.  Collins,  1  Swan,  516; 
Newell  v.  Dart,  28  Minn.  24S  —  9  N.  W.  Rep.  732.) 

But  if  the  statute  expressly  provides  that  in  case  a  levy  is 
made  during  the  existence  of  the  lien,  a  sale  may  be  made 
within  a  specified  time,  in  which  case  the  judgment  lien  is 
prolonged  until  the  expiration  of  such  time. 

(Hastings  v.  Bryant,  115  111.   693  —  3  N.  E.   Eep.   507.) 

Execution  Issued  Before  its  Expiration  Preserves  Lien. 

§  204.  In  Missouri  a  doctrine  is  maintained  diametrically 
at  variance  with  the  current  of  authority  where  an  execution 
levy  made  before  the  expiration  of  the  period  wherein  judg- 
ments have  the  force  of  general  liens  continues  the  lien  until 
the  execution  of  the  writ  notwithstanding  the  time  had 
elapsed  during  which  the  judgment  lien  continued.  Tin's 
ruling  however  is  due  to  statutory  provision  to  the  elrect 
that  the  lien  under  such  circumstances  shall  be  extended  by 
reason  of  the  issuance  and  levy  of  the  execution. 

(Huff  v.  Morton,  94  Mo.  405  —  7  S.  W.  Eep.  283 ;  Bank  v.  Wells,  12 
Mo.  361  —  51  Am.  Dec.  163;  Durrett  v.  Hulse,  67  Mo.  201;  Wood  v. 
Messerly,  46  Mo.  255.) 

EFFECT  AND  NATURE  OF  JUDGMENT  LIEN. 

Creature  of  Statute  and  a  General  Lien. 

§  205.  The  lion  of  jndcrnont  is  pnrolv  a  creature  of  ptntnte 
and  is  in  no  way  regarded  as  a  special  lien  upon  any  specific 


EFFECT  AND  NATURE  OF  JUDGMENT  LIEX.  187 

property,  but  merely  a  general  lien  upon  the  lands  of  the 
judgment  debtor,  and  is  subject  to  all  prior  liens,  whether 
legal  or  equitable.  And  this  irrespective  of  any  knowledge 
on  the  part  of  the  judgment  creditor  as  to  the  existence  of 
such  prior  liens. 

(Leonard  v.  Broughton,  120  Ind.  536  —  22  N.  E.  Rep.  731;  Savings 
Bank  v.  Hollenbeck.  29  Minn.  322  —  13  N.  W.  Rep.  145;  Snyder  v.  Botkin, 
37  W.  Va.  355  —  16  S.  E.  Rep.  591 ;  Fogg  v.  Blair,  133  U.  S.  534  —  10  Sup. 
Ct.  Rep.  338;  Foltz  v.  Wirt,  103  Ind.  409  —  2  N.  E.  Rep.  950;  Warren 
v.  Hull,  123  Ind.  126  —  24  N.  E.  Rep.  96;  School  District  v.  Werner,  43 
Iowa,  643;  Rodgers  v.  Bowncr,  45  N.  Y.  379.) 

While  a  judgment  creditor  whose  judgment  is  a  lien  upon 
his  debtor's  lands  has  no  specific  lien  nor  any  estate  or  in- 
terest in  the  same,  yet  he  has  nevertheless  a  power  to  make 
his  general  lien  effectual  by  pursuing  the  course  of  law  in  this 
regard  by  enforcing  his  judgment  by  taking  out  execution 
and  causing  a  levy  to  be  made  upon  particular  property  and 
the  property  sold  thereunder,  in  which  case  the  lien  becomes 
in  effect  specific. 

(Bruce  v.  Nicholson.  109  N.  C.  202  —  13  S.  E.  Rop.  790;  Hargreaves 
V.  Meneken,  45  Neb.  668  —  63  N.  W.  Rep.  951;  Mansfield  v.  Gregory, 
11  Neb.  297  —  9  N.  W.  Rep.  87 ;  Pearson  v.  Davis,  41  Neb.  608  —  59  N. 
W.  Rep.  SS5;  Witmer's  Appeal.  45  Pa,  St.  455  —  84  Am.  Dec.  505;  Petit 
v.  Shepherd,  5  Paige.  493  —  28  Am.  Dec.  437;  Ashton  v.  Slater,  19 
Minn.  347;  Logan  v.  Hall,  42  Cal.  645.) 

Upon  what  Property  Lien  Attaches. 

§  206.  It  is  a  general  rule  that  the  lien  of  judgment  at- 
taches upon  the  actual  and  not  upon  the  apparent  interest 
of  judgment  debtor  in  the  land. 

(Burke  v.  Johnson,  37  Kan.  337  —  15  Pac.  Rep.  204.) 

Hence  where  judgments  have  the  force  of  liens  they  reach 
not  only  the  fee  in  real  estate  owned  by  the  judgment  defend- 
ant, but  also  an  estate  for  life,  a  leasehold  interest,  a  re- 
version or  vested  remainder,  as  well  as  any  estate  or  interest 
in  land  which  is  liable  to  execution  sale,  or  which  may  be 
reached  by  any  process  for  the  satisfaction  of  debts.  Thus 
including  equitable  estates,  whether  of  record  or  not.  This 
is  the  general  rule,  though  there  is  considerable  conflict  in 
the  adjudicated  cases  in  this  regard,  and  some  seemingly 
arbritrary  exceptions,  as  the  cases  cited  will  show. 


1S8  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

(Kingsport  v.  Boynton,  120  Pa.  St.  306  —  14  Atl.  Rep.  135;  McNeill 
v.  Carter,  57  Ark.  579  —  22  S.  W.  Rep.  94;  Gorham  v.  Farson,  119  111. 
425  —  10  N.  E.  Eep.  1;  Band  v.  Garner,  75  Iowa.  311  —  39  N.  W.  Rep. 
515;  Sullivan  v.  Leckie,  60  Iowa,  326  —  14  X.  W.  Rep.  355;  Trusdell 
v.  Lehman,  47  X.  J.  Eq.  21S  — 20  Atl.  Rep.  391;  Sipley  v.  Wass,  47  X. 
J.  Eq.  463  —  24  Atl.  Rep.  233;  Taylor  v.  Wynne,  57  Hun.  590  —  10  X.  Y. 
Supp.  644;  Julian  v.  Bell,  26  Ind.  220 —  89  Am.  Dec.  460;  Railway  Co. 
v.  Heim,  97  Ind.  525 ;  Terrell  v.  Prestell,  68  Ind.  86 ;  Lawrence  v.  Belger, 
31  Ohio  St.  175;  Ballinger  v.  Drook,  101  Ind.  172;  Mitchell  v.  Wood, 
47  Miss.  237;  Lippincott  v.  Wilson.  40  Iowa,  425;  Van  Camp  v.  Peeren- 
boom,  14  Wis.  65;  Wason  v.  Lord,  40  N.  Y.  477;  Evans  v.  Feeny,  81  Ind. 
539;  Bank  v.  Bennett,  40  Iowa,  537;  Eastman  v.  Settler,  13  Wis.  325; 
Jones  v.  Fletcher,  42  Ark.  422.) 

So  it  is  held  that  where  a  judgment  debtor  buys  land  with 
his  own  money  but  has  the  title  to  the  same  placed  in  the 
name  of  a  third  person  for  the  purpose  of  defrauding  his 
creditors  the  lien  attaches. 

(Slattery  v.  Jones,  96  Mo.  216  —  8  S.  W.  Rep.  554.) 

The  lien  of  judgment  against  a  grantor  in  a  deed  absolute 
on  its  face  but  in  fact  only  a  mortgage  attaches  to  the  land 
described  in  such  deed,  and  may  be  sold  under  execution. 

(Macauley  v.  Smith,  132  X.  Y.  524  —  30  X.  E.  Rep.  997;  Marston  v. 
Williams,    45   Minn.    116  —  47    X.   W.    Rep.    644.) 

But  a  judgment  against  one  to  whom  the  naked  legal  title 
to  real  estate  is  conveyed  for  the  sole  purpose  of  more  con- 
veniently conveying  the  title  to  a  purchaser  upon  the  pay- 
ment of  the  purchase  money  does  not  become  a  lien  upon  the 
land. 

(Brebner  v.  Johnson,  84  Iowa,  23  —  50  X.  W.  Eep.  35.) 

Xor  is  the  naked  legal  title  of  a  trustee,  or  a  momentary 
seizin  such  as  that  of  conduit  of  title  between  husband  and 
wife,  or  that  which  elapses  between  the  receipt  of  a  title  deed 
and  the  giving  of  a  mortgage  to  secure  the  whole  or  a  part 
of  the  purchase  money,  affected  by  the  judgment  lien,  not- 
withstanding the  fact  that  real  estate  subsequently  acquired 
is  covered  by  the  express  language  of  the  statute  creating  the 
lien  of  judgment. 

(Moore  v.  Thomas,  137  Ind.  218  —  36  X.  E.  Rep.  712:  Roberts  v. 
Robinson,  49  Neb.  717  —  68  N.  W.  Eep.  1035;  Brebner  v.  Johnson.  S4 
Iowa,  23  —  50  X.  W.  Eep.  35;  Main  v.  Bosworth.  77  Wis.  660  —  46  X. 
\V.  Eep.  1043;  Johnston  v.  Lemond,  109  X.  C.  643  —  14  S.  E.  Rep.  86; 


EFFECT  AND  NATTJBE  OF  JUDGMENT  LIEN.  189 

Hays  v.  Roger,  102  Ind.  524  —  1  N.  E.  Rep.  3S6;  Atkinson  v.  Hancock, 
67  Iowa,  452  —  25  N.  W.  Rep.  701;  Heberd  v.  Wines,  105  Ind.  242  —  4 
N.  E.  Rep.  457;  Wade  v.  Sewell,  5G  Fed.  Rep.  129;  Duell  v.  Pattee,  70 
N.  W.  Rep.  937;  Ransom  v.  Sargent,  22  Kan.  516;  Moyer  v.  Hinman, 
13  N.  Y.  180;  Lounsbery  v.  Purdy,  18  N.  Y.  515.) 

Where  a  purchaser  in  good  faith  for  a  full  consideration, 
having  no  deed,  enters  into  possession  of  the  land,  or  where 
a  mortgagee  has  taken  his  security  with  an  erroneous  descrip- 
tion, the  lien  of  judgment  has  been  postponed  to  such  pur- 
chase or  mortgage  security. 

(Carver  v.  Lasalette,  57  Wis.  232  —  15  N.  W.  Rep.  162;  Godeil  v. 
Blumer,  41  Wis.  436;  Floyd  v.  Harding,  28  Gratt.  401;  Swarts  v.  btees, 
2  Kan.  236.) 

It  is  held  that  where  mortgages  are  mere  liens  to  secure, 
and  incidents  to  the  debt,  the  interest  of  the  mortgagee  is  not 
so  far  an  interest  in  the  land  itself  as  to  be  affected  by  the 
lien  of  judgment.  The  same  reasoning  would  be  applicable 
to  a  vendor's  lien. 

(Courtney  v.  Parker,  21  Neb.  582  —  33  N.  W.  Rep.  262;  Scott  v. 
Mewhirter,  49  Iowa,  487;  Woodward  v.  Dean,  46  Iowa,  499;  Hibbard  v. 
Smith,   50  Cal.   511.) 

In  Nebraska  it  is  held  that  a  judgment  is  not  a  lien  upon 
the  equitable  interest  of  the  debtor  in  land. 

(Bank  v.  Tighe,  49  Neb.  299  —  68  N.  W.  Rep.  490;  Nessler  v.  Neher, 
18  Neb.  649  —  26  N.  W.  Rep.  471.) 

And  in  Illinois  it  is  held  that  the  right  of  a  judgment 
debtor  to  redeem  his  property  from  forced  sale  is  a  mere  per- 
sonal right  which  can  not  be  affected,  impaired  or  transferred 
to  another  by  the  lien  of  any  subsequent  judgment  against  the 
debtor,  the  statutory  right  to  redeem  being  held  not  subject 
to  the  judgment  lien. 

(Blair  v.  Chamberlain.  39  111.  521  —  89  Am.  Dec.  322;  Watson  v.  Reissig, 
24  111.  2S1  —76  Am.  Dec.  746;  Merry  v.  Bostwick,  13  111.  398  —  54  Am. 
Dec.   434.) 

But  in  several  other  states  a  contrary  rule  obtains  and  this 
interest  is  considered  to  be  subject  to  the  lien  of  judgments 
subsequently  obtained   against  the  debtor. 

(Kingsport  v.  Boynton,  120  Pa.  St.  306  —  14  Atl.  Rep.  135;  Sullivan 
v.  Leekie.  60  Iowa,  326  — 14  N.  W.  Rep.  355;  Bridges  v.  Cooper,  39 
S.  W.  Rep.  720;  Julian  v.  Bell,  26  Ind.  220  —  S9  Am.  Dec.  460;  Taylor 
v.  Cornelius,  60  Pa.  St.  187;  Bank  v.  Morsell,  1  McArt.  155.) 


190  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

The  lien  will  not  give  the  judgment  creditor  the  benefit 
of  a  secret  equity  of  the  defendant  as  against  the  purchaser 
in  good  faith  of  the  legal  title  to  the  land. 

(Well?  v.  Benton.  10S  Ind.  590  —  8  X.  E.  Eep.  444;  Gordon  v.  Eixy, 
7S  Va.  694.) 

"Where  docketing  is  a  requirement  of  statute  the  judgment 
becomes  a  lien  only  as  against  a  defendant  whose  name  is 
placed  in  the  docket,  and  as  to  whom  it  is  or  can  be  indexed, 
but  not  against  anyone  else. 

(Hughes  v.  Lacock,  63  Miss.  112.) 

When  the  judgment  lien  has  attached  to  the  land  it  is  held 
that  it  can  not  be  defeated  or  avoided  by  subsequently  oc- 
cupying it  as  a  homestead  by  the  judgment  defendant. 

(Bunn  v.  Lindsay,  95  Mo.  250  —  7  S.  W.  Eep.  743.) 

"When  the  Lien  Attaches. 

§  207.  In  proceedings  in  attachment  the  judgment  lien 
dates  from  the  moment  when  the  attachment  was  levied  in 
so  far  as  the  property  seized  is  concerned.  The  attachment 
is  constructive  notice  from  the  date  thereof  to  all  subsequent 
purchasers  acquiring  interests  in  the  property  seized  from 
the  attachment  defendant.  The  judgment  is  a  continuation 
of  the  lien  of  attachment,  the  latter  being  merged  in  the 
former. 

(McClellan  v.  Solomon,  23  Fla.  437  —  2  So.  Eep.  825;  Coekey  v.  Milne, 
1G  Md.  200.) 

And  the  same  rule  applies  in  proceedings  for  the  foreclos- 
ure of  mortgages  and  other  specific  liens  on  property,  in 
which  case  the  judgment  does  not  create  but  merely  enforces 
the  lien  already  existing. 

(Huntington  v.  Meyer,  92  Wis.  557  —  66  N.  W.  Eep.  500.) 

Under  the  codes  of  some  of  the  states  the  judgment  lien 
attaches  upon  the  defendant's  lands  from  the  beginning  of 
the  term  of  court  at  which  the  judgment  was  rendered,  and 
thus  is  superior  to  any  conveyance  or  incumbrance  made  by 
the  debtor  subsequent  to  the  beginning  of  the  term,  notwith- 
ding  the  date  of  the  conveyance  or  incumbrance  is  an- 
terior to  that  of  the  judgment. 

(Tlockman  v.  Hoekman,  93  Va.  855  —  25  S.  E.  Eep.  534;  Ferrell  v. 
Hales,  119  X.   C.   199  —  25  S.   E.   Eep.   821;   Bank  v.   Distilling  Co.,   41 


EFFECT  AND  NATURE  OF  JUDGMENT  LIEX.  191 

W.  Va.  530 23  S.  E.  Rep.  792;  Withers  v.  Caster,  4  Gratt.    107  —  50 

Am.  Dec.  78;  Follett  v.  Hall.  16  Ohio,  111  —  47  Am.  Dec.  3§5;  Skipwith 
v.  Cunningham,  8  Leigh,  271  -31  Am.  Dec.  642;  Farley  v.  Lea,  4  Dev. 
&  Bat.  169  —  32  Am.  Dec.  630;  Yates  v.  Robertson,  ;->u  Va.  475;  Brocken- 
brough  v.  Brockenbrough,  31  Gratt.  580.) 

By  reason  of  the  rule  that  the  law  knows  no  parts  of  days, 
the  lien  of  the  judgment  or  decree  begins  with  the  first 
moment  of  the  day  on  which  it  attaches,  and  therefore  has 
priority  over  any  conveyance  or  incumbrance  recorded  on  the 
same  day. 

(Hockman  v.  Hockman,  93  Va.  855-25  S.  E.  Eep.  534;  Skipworth 
v.  Cunningham,  3  Leigh,  271-31  Am.  Dec.  642;  Horsley  v.  Garth.  2 
Gratt.  474  —  44  Am.  Dec.  393:  Withers  v.  Carter.  4  Gratt.  407  —  50  Am. 
Dec.  78.) 

The  time  when  judgments  become  liens  is  not  the  same  in 
everv  state.  Thus  in  some  states  they  become  liens  from 
the  date  of  their  rendition,  while  in  others  the  lien  com- 
mences from  the  date  on  which  it  is  docketed.  In  some  it 
begins  when  the  judgment  is  recorded  and  indexed,  and  in 
some  from  the  date  of  its  actual  entry,  while  in  others  it  dates 
from  the  time  when  the  judgment  is  entered  and  pronounced. 
The  particular  statute  must  be  consulted  in  each  case  to  de- 
termine this  question. 

The  time  fixed  by  statute  for  the  commencement  of  the 
lien  of  judgment  is  unalterable  and  can  not  be  changed  or 
modified  by  the  recitals  in  a  sheriff's  deed,  nor  can  the  lien 
be  prolonged  by  the  court  beyond  the  period  established  by 
law. 

(Owen  v.  Baker,  101  Mo.  407-14  S.  W.  EeP.  175;  McAffee  v.  Rey- 
nolds, 130  Ind.  33  —  28  N.  E.  Eep.  423.) 

Lien  Attaches  to  Lands  Conveyed  in  Fraud  of  Creditors. 

§  208.  The  judgment  lien  attaches  to  the  land  of  the 
judgment  debtor  fraudulently  conveyed  by  him  to  another, 
and  may  be  sold  under  execution  the  same  as  if  no  change  in 
the  title  had  occurred.  The  title  thus  transferred  under 
execution  sale  is  the  legal  title  itself,  and  not  merely  a  right 
to  control  it.  'Against  tin's  title  the  fraudulent  transfer  is 
in  effect  as  if  it  had  never  been  made  at  all.  The  same  rule 
obtains  in  regard  to  mortgages,  liens,  judgments  and  execu- 


192  VOID   JUDICIAL    AND    EXECUTION"    SALES. 

tions,  conceived  by  a  fraudulent  intent  and  procured  for  the 
purpose  of  hindering,  delaying  or  defrauding  creditors. 

(Henderson  v.  Henderson,  133  Pa.  St.  399  —  19  Atl.  Rep.  424;  Slattery 
v.  Jones,  96  Mo.  216  —  8  S.  W.  Rep.  554;  Jackson  v.  Holbrook,  36  Minn. 
494  —  32  N.  W.  Rep.  852 ;  Fowler  v.  Frebein,  16  Ohio  St.  493  —  91  Am. 
Dec.  95;  Staples  v.  Bradley,  23  Conn.  167  —  60  Am.  Dec.  630;  Duvall 
V.  Waters,  1  Bland,  569  —  18  Am.  Dec.  350;  Bank  v.  Risley,  19  N.  Y. 
369  —  75  Am.  Dec.  347;  Dunham  v.  Cox,  10  N.  J.  Eq.  437  —  64  Am.  Dec. 
460;  Foley  v.  Bitter,  34  Md.  646;  Eastman  v.  Schettler,  13  Wis.  324; 
Jacobey's   Appeal,    67   Pa.    St.    434.) 

But  where  there  are  several  judgment  creditors,  the  cred- 
itor who  first  proceeds  in  equity  to  reach  property  fraud- 
ulently transferred  by  the  judgment  debtor  obtains  a  right 
to  priority  to  which  the  claims  of  other  judgment  creditors, 
both  prior  and  subsequent,  must  yield  precedence,  notwith- 
standing that  each  of  the  latter  might  have  availed  himself 
of  his  remedy  in  equity  the  same  as  the  former. 

(Boyle  v.  Maroney,  73  Iowa,  70  —  35  N.  W.  Rep.  145:  Davison  v. 
Burke,  143  111.  139  —  32  N.  E.  Rep.  514;  Howland  v.  Knox.  59  Iowa, 
46—12  N.  W.  Rep.  777;  Rappleye  v.  Bank,  93  111.  396;  In  re  Estes,  6 
Sawyer,  459  —  3  Fed.  Rep.  134;  Young  v.  Clapp,  40  111.  App.  312; 
Bridgeman  v.  McKissick,  15  Iowa,  260;  Lyon  v.  Robbins,  46  111.  276.) 

Though  in  such  case  only  the  interest  of  the  fraudulent 
grantee  is  sold,  and  all  liens  prior  to  such  conveyance  and 
prior  to  the  judgment  sought  to  be  satisfied  out  of  the  prop- 
erty are  not  affected  by  it  and  the  holder  thereof  may  follow 
the  land  no  matter  in  whose  hands  it  may  come. 

(Fidler  v.  John,  178  Pa.  St.  112  —  35  Atl.  Rep.  976.) 


Chapter  III. 


Order  or  License  of  Sale  by  Administrator,  Executor  or 
Guardian,  and  How  Procured. 


ANALYSIS. 
Section  209.  Lands  of  Decedents  in-  General  —  Are  Assets  to  Liquidate 
Debts. 

210.  Petition  for  Probate  Sale  Must  be  Presented  by  Compe- 

tent    Petitioner  —  Incompetency    a    Jurisdictional     In- 
firmity. 

211.  Sale    by    Fiduciary    Presupposes    their    Legal    Existence 

as  Such. 

212.  Part   only  of  Administrators  or   Executors   Licensed 

to  Sell. 

213.  False  Representations  as  to  Guardianship  or  Release. 

214.  Lands  in  Another  State. 

215.  Petitions   for   Orders   or   Licenses   for   the   Sale   of   Lands 

of    Decedents,    Infants    and    Incompetents — -Its    Initial 
Step  or  Foundation  of  Order  or  License. 

216.  Substantial  Compliance  with  Requirements  of  Stat- 
ute Essential. 

217.  Sale  Can  only  be  had  upon  Allegations  of  Statutory 

Causes. 

218.  Essential  Facts  Defectively  Stated. 

219.  Administration   Proceedings   Indivisible    though   Sale 

Independent. 

220.  Petition  Must  Show  the  Existence  of  Debts. 

221.  Averment  of  no  Personal  Property  Essential. 

222.  To  Pay  Expenses  of  Administration. 

223.  Account  of  Personal  Estate  by  Fiduciary. 

224.  Claim  Barred  by  Statute  of  Limitations. 

225.  Verification  of  the  Petition. 

226.  'Interested  Parties  Named  in  the  Petition. 

227.  Property  to  be  Sold  Should  be  Described. 

228.  Statutes   Providing  Sale  can  not   be  Avoided  Certain 

Things  Appearing. 

229.  Policy  of  the  Law  regarding  Probate  Sales. 

230  Jurisdiction  Dependent  on  Sufficient  Averment,  of  Facts 
—  Averment  of  Sufficient  Facts  and  not  their  Truth  Es- 
sential. 

231.  Falsity  of  Facts  can  not   be  Shown  Collaterally. 

13 


194  VOID   JUDICIAL    AND    EXECUTION    SALES. 

Section  232.  Notice  of  the  Pendency  of  the  Petition  for  an  Order  or 
License  of  Sale  not  Considered  an  Indispensable  Re- 
quirement  —  Two  Distinct   Views  as  to  Probate  Sales. 

233.  — —  Notice   not  Jurisdictional   where   Proceedings   are   in 

rem. 

234.  Notice  not  Essential  where  Guardian's   Sales  are  in 

rem. 

235.  Notice  of  the  Pendency  of  the  Application  for  an  Order 

or  License  of  Sale  Considered  a  Jurisdictional  Require 
ment  —  If  Sale  by  Administrator  is  Considered  Adver- 
sary Notice  Essential. 

236.  Notice  in  Sales  by  Guardians. 

237.  Statutes  Must  be  Strictly  Pursued. 

238.  -Acceptance  and  Waiver  of  Service  of  Notice. 

239.  To  be  Operative  the  Notice  Must  be  Given  in  the  Manner 

as  directed  by  Statute  —  General  Rule  as  to  Defective 
Service  and  Non-service. 

240.  Day  Unauthorized  or  not  Sufficiently  Remote. 

241.  If  Description  is  Given  it  Must  be  Correct. 

242.  Notice  given  in  Unauthorized  Manner. 

243.  Notice  for  the  Prescribed  Length  of  Time  Must  be  Given 

—  Provision  of  Statute  as  to  Length  of  Notice  is  Im- 
perative. 

244.  The  Order  or  License  of  Sale  and  Its  Conclusiveness  as 

an  Adjudication  —  Order  Must  not  Go  Beyond  the  Pe- 
tition. 

245.  Only  the  Land  Embraced  in  the  Order  Can  be  Sold. 

246.  Order  to  Sell  upon  Petition  to  Mortgage. 

247.  Order   of   Sale   to   pay   Debts   Barred   by  Statute   of 

Limitations. 

24S.  Description  of  Property  in  the  Order. 

249. ■  Statute   Authorizing   a    Sale   Does   not   Include   Ex- 
change or  Mortgage. 

250.  Sale  of  a  Part  Only  or  of  Interest   Subject  to  En- 
cumbrance. 

251.  Order  of  Sale  is  Conclusive  if  Cnurt  had  Jurisdiction. 

252.  Healing   Statutes   and   Their   Effect  —  General   Provisions 

of  these  Statutes. 

253.  Failure  to  Give  the  Sale  Bond  Required. 

254.  Failure  to  Take  the  Oath  Prescribed. 

255.  Failure  to   Give   the   Notice. 

256.  The  Sale  Must  be  Confirmed. 

257.  Land  Must  be  Purchased  in  Good  Faith. 

LANDS  OF  DECEDENT  IN  GENEKAL.. 
Are  Assets  to  Liquidate  Debts. 

§  209.  Under  the  jurisprudence  of  this  country  for  many 
years  back  the  lands  of  a  deceased  person  constitute  assets 


PETITION  FOB  PROBATE  SALE,  HOW  PRESENTED.  195 

for  the  liquidation  of  his  debts.  While  this  is  true,  yet,  the 
administrator,  and  unless  by  express  directions  of  the  will, 
the  executor,  being-  vested  merely  with  the  goods  and  effects 
of  the  decedent,  has  no  power  to  dispose  of  the  lands  of  the 
estate  without  authority  from  the  court,  by  way  of  an  order 
directing  its  sale.  In  most  of  the  states  the  fiduciary,  ad- 
ministrator or  executor,  ordinarily  makes  the  application  for 
an  order  or  decree  permitting  him  to  sell,  either  for  the  pay- 
ment of  debts,  to  raise  money  for  a  family  allowance,  or  in 
some  states,  for  the  support  of  the  children  of  the  decedent, 
or  for  the  purpose  of  a  distribution  of  the  estate,  when  the 
local  law  allows  a  sale  for  this  purpose. 

The  application  usually  is  more  or  less  summary  and  the 
records  and  proceedings  of  the  courts  having  probate  juris- 
diction are  often  uncertain  and  irregular,  furnishing  a  fruit- 
ful source  of  litigation. 

In  South  Carolina  the  probate  judge  himself  and  not  the 
administrator  or  executor  sells,  while  in  Illinois,  Virginia, 
West  Virginia,  Kentucky  and  Maryland  the  only  means  by 
which  a  decree  or  order  can  be  obtained  to  sell  descended 
or  devised  lands  for  the  payment  of  debts  of  the  decedent  or 
expenses  of  administration  is  by  way  of  a  suit  in  equity  or 
allied  proceeding  according  to  the  requirements  of  statute, 
which  may  generally  be  inaugurated  by  any  creditor,  heir, 
distributee,  devisee  or  legatee  as  well  as  by  the  fiduciary. 
The  jurisdiction  in  this  regard  beino-  a  statutory  extension 
of  the  power  of  the  chancellor  in  England  in  cases  where 
the  will  of  the  decedent  expressly  charged  his  estate  with 
his  debts,  and  accordingly  converted  his  lands  into  equitable 
as=ets  for  the  payment  of  his  obligations.  The  proceedings 
of  sale  thus  being  practically  in  chancery  a  perfect  title  is 
aimed  to  be  given  thereby.  In  order  to  bind  them,  all  parties 
having  liens,  must  be  made  parties  to  the  bill,  and  if  not 
made  parties  they  are  not  barred  by  the  decree. 

PETITION  FOR  PEOBATE  SALE  MUST  BE  PRE- 
SENTED BY  COMPETENT  PETITIONER. 

Incompetency  of  Fiduciary  a  Jurisdictional  Infirmity. 

§  210.  As  a  general  rule  probate  sales  are  wholly  without 
foundation  unless  made  in  pursuance  of  an  order  of  sale  from 


196  VOID    JUDICIAL    AND    EXECUTION    SALES. 

a  competent  court.  This  is  the  rule  except  in  cases  of  sales 
by  executors  under  wills  providing  for  sales  otherwise  than 
under  the  supervision  of  the  court,  or  in  cases  where  the 
statute  expressly  provides  for  sales  by  administrators  or 
executors  without  the  order  of  the  court  to  that  effect. 

The  order  or  license  for  the  sale  of  lands  in  sales  by  ad- 
ministrators occupies  a  position  in  such  proceedings  analo- 
gous to  a  judgment  in  a  sale  under  execution  upon  a  simple 
money  judgment  in  a  suit  at  common  law,  or  a  decree 
in  chancery.  As  no  judgment  or  decree  can  be  pro- 
nounced or  judgment  rendered  without  a  written  statement 
of  a  cause  of  action,  so  the  order  in  probate  sales  must, 
as  a  rule,  be  supported  by  a  petition  embracing  the  necessary 
averments  of  essential  pre-existing  facts  warranting  its  issu- 
ance. It  is  apparent  that  such  order  is  more  analogous  to  a 
judgment  in  an  original  action  than  to  an  interlocutory  order 
in  an  existing  proceeding  wherein  jurisdiction  has  already 
vested  and  which  is  not  a  final  disposition  of  the  proceeding.. 

Accordingly,  as  an  essential  pre-requisite  to  the  procure- 
ment of  an  order  of  sale  of  a  decedent's  lands  in  probate 
there  must  be  filed  a  petition  therefor,  the  same  as  in  any 
ordinary  action,  and  notice  of  its  pendency  and  presentation 
must  be  issued  and  served  in  the  manner  provided  by  law. 
The  proceedings  thus  conducted  resulting  in  the  making  of 
the  order  are  completely  adversary  pursuant  to  the  decided 
preponderance  of  authority,  and  being  thus,  it  is  manifest 
that  any  jurisdictional  defect  in  them  will  be  fatal  to  the 
title  of  the  purchaser  acquired  thereunder,  the  fatality  being 
equally  as  grave  as  if  the  infirmity  existed  in  the  original 
grant  of  administration. 

Deficiencies  for  want  of  facts  sufficient  to  entitle  the  plain- 
tiff to  the  relief  demanded  in  complaints  in  actions  at  lav;  or 
in  petitions  in  suits  in  equity  must  be  pointed  out  before  the 
rendition  of  the  judgment,  and  if  attention  is  not  so  drawn  to 
such  objections,  judgment  may  be  entered  notwithstanding 
the  imperfection  which  will  not  lie  void  despite  the  deficien- 
cies, though  erroneous  and  subject  to  reversal  on  appeal. 
The  same  reasoning  applies  to  a  case  where  the  complainant 
has  no  capacity  to  maintain  the  suit  which  he  has  instituted, 
if  objections  to  his  incompetency  are  not  urged  judgment 


PETITION  FOR  PROBATE  SALE,  HOW  PRESENTED.  197 

is  liable  to  be  pronounced  which,  while  erroneous,  is  never- 
theless not  a  nullity. 

But  this  reasoning',  while  true  as  to  actions  at  law  and 
suits  in  equity,  has  no  application  to  proceedings  in  adminis- 
tration, for,  if  the  petitioner  in  a  petition  for  the  sale  of 
lands  of  a  decedent  or  incompetent  is  a  person  not  authorized 
to  make  such  application,  the  defect  is  not  classed  in  the 
catalogue  of  irregularities,  but  the  infirmity  is  of  a  graver 
character  for  it  is  at  once  jurisdictional.  Accordingly,  if  an 
incompetent  or  unauthorized  person  makes  a  presentation  of 
a  petition  for  an  order  to  sell,  the  jurisdiction  of  the  court 
can  not  be  invoke,]  thereby,  and  the  order  can  not  be  law- 
fully made  upon  it,  and  if  made  is  coram  non  judice  and 
void,  and  therefore  incapable  of  furnishing  a  foundation  to 
support  a  sale.  Hence,  if  it  appears  from  the  whole  record 
in  the  proceedings  that  such  petitioner,  whether  adminis- 
trator or  guardian,  has  not  been  legally  appointed  as  such, 
or  if  the  petition  is  made  by  some  one  else  not  by  law  author- 
ized, and  the  authority  does  not  appear  from  the  record,  the 
proceedings  and  sale  are  wholly  void  and  subject  to  collateral 
impeachment. 

(Staples  v.  Connor,  79  Cal.  14  —  21  Pac.  Rep.  3S0;  Shipman  v.  Butter- 
field,  47  Mich.  4S7  — 11  N.  W.  Rep.  283;  Pryor  v.  Downey.  50  Cal.  388  — 
19  Am.  Rep.  656;  Long  v.  Burnett,  13  Iowa,  28  —  81  Am.  Dee.  420; 
Withers  v.  Patterson,  27  Tex.  491  —  86  Am.  Dee.  643;  Frederick  v. 
Pacquette,  19  Wis.  541 ;  Allen  v.  Kellam,  69  Ala.  442 ;  Chase  v.  Ross,  36 
Wis.  267;  Washington  v.  McCaughan,  34  Miss.  304;  Hyatt  v.  James,  8 
Bush,  9;  Miller  v.  Miller,  10  Tex.  319;  Smith  v.  Rice,  11  Mass.  507; 
Sumner  v.  Parker,  7  Mass  79;  Unknown  Heirs  v.  Baker,  23  111.  4^4; 
Sitzman   v.    Pacquette,    13    Wis.    291.) 

Sale  by  Fiduciary  Presupposes  their  Legal  Existence  as  Such. 

§  211.  As  a  matter  of  fact,  a  sale  by  a  guardian  or  admin- 
istrator presupposes  the  legal  existence  of  such  fiduciary,  and 
it  follows  as  an  inevitable  consequence  that  if  there  was  no 
guardian  or  no  administrator,  then  there  was  no  sale.  Subse- 
quent confirmation  of  the  sale  thus  made,  by  the  court,  can 
infuse  no  validity  to  such  a  transaction,  because  there  was 
nothing  for  the  confirming  order  to  act  upon.  Nor  does  the 
order  of  confirmation  adjudicate  the  fact  that  the  pretended 
li  luciary  who  made  the  sale  was  such  in  fact.     No  number 


198  YOID    JUDICIAL    AND    EXECUTION    SALES. 

of  confirmations  could  cure  such  a  defect  because  it  is  juris- 
dictional. 

(Burrell  v.  Railway  Co.,  43  Minn.  363  —  45  N.  W.  Rep.  S49;  Dawson 
V.  Helmes,  30  Minn.  107  —  14  N.  W.  Rep.  462;  Coon  v.  Cook.  6  Ind.  268.) 

Therefore,  sales  of  real  estate  by  administrators  are  void 
when  the  appointment  of  the  administrator  is  void,  or  where 
the  fiduciary  was  appointed  under  a  void  judgment. 

(Stewart  v.  Golden.  98  Ga.  479  —  25  S.  E.  Rep.  528;  Callaghan  v. 
Fluker,  49  La.  Ann.  237  —  21  So.  Rep.  253;  Smith  v.  Wilson,  25  S.  E. 
Rep.  528.) 

So  in  Arkansas  it  was  held  that  a  sale  upon  petition  and 
order  by  a  natural  guardian  having  the  care  and  custody  of 
the  person  of  a  minor,  but  not  the  control  of  his  estate,  and 
who  was  not  appointed  as  statutory  guardian,  is  void  be- 
cause unauthorized. 

(Guynn  v.  MeCauley,  32  Ark.  97.) 

And  in  Michigan  it  is  held  that  the  appointment  of  a 
person  as  administrator  who  does  not  appear  by  the  aver- 
ments of  the  petition  to  be  one  competent  to  be  such  under 
the  statute,  is  void  for  jurisdictional  reasons,  and  a  sale  of 
lands  made  under  an  order  of  the  court  by  such  unauthorized 
person  thus  appointed  is  void  and  open  to  successful  col- 
lateral impeachment. 

(Haug  v.  Primeau,  98  Mich.  91  —  57  N.  W.  Rep.  25;  Shipman  v. 
Butterfield,  47  Mich.  4S7  —  11  N.  W.  Rep.  283.) 

So  in  a  late  case  in  Louisiana  a  similar  ruling  was  made 
where  lands  were  sold  by  the  consent  of  a  dative  tutor  who 
was  a  stranger  wrongfully  appointed  instead  of  the  father. 

(James  v.   Meyer,   41   La.  Ann.   1100  —  7   So.   Rep.    618.) 

Part  only  of  Administrators  or  Executors  Licensed  to  Sell. 

§  212.  Where  there  are  two  or  more  acting  executors  or 
administrators,  a  petition  for  a  license  to  sell  lands  made  by 
but  a  part  of  them  can  not  be  void  upon  principle,  but  at 
most  irregular.  Such  officers  obtain  their  power  from  the 
court  under  whose  directions  they  act,  and  a  sale  under  an 
order  to  one  when  reported  and  confirmed,  will  pass  the 
title,   as   against  a   collateral   attack,   even   though    the  other 


PETITION  FOR  PROBATE  SALE,  HOW  PRESENTED. 


199 


fiduciaries  do  not  all  join  in  the  petition  or  are  not  all  men- 
tioned in  the  license. 

(Melms  v.  Pfister,  59  Wis.  1SG  — 18  N.  W.  Rep.  255;  Corley  v. 
Anderson.  5  Tex.  Civ.  App.  313-23  S.  W.  Rep.  839;  Downing  v.  Ruger, 
21  Wend.  178  —  34  Am.  Dec.  223;  Fitch  v.  Whitbeck.  2  Barb.  Ch.  161; 
Gregory  v.  McPherson,  13  Cal.  578;  De  Bardenlaben  v.  Stoudenniire,  48 
Ala.   043.) 

But  a  diametrically  opposite  ruling  was  made  in  Massa- 
chusetts where  an  order  obtained  upon  a  petition  by  one 
administrator  when  there  were  several    was  held  void. 

(Hanum  v.  Day,  105  Mass.  33.) 

False  Representations  as  to  Guardianship  or  Release. 

§  213.  It  is  indispensible  that  when  a  guardian  or  ad- 
ministrator represents  himself  as  such  that  the  relation 
actually  exists,  for  an  order  of  sale  is  made  without  juris- 
diction if  the  relation  does  not  exist.  Hence,  where  one 
falsely  represents  himself  as  guardian  in  the  presentation  of 
a  petition  to  the  orphans'  court,  the  order  issued  to  him 
thereon  and  all  subsequent  proceedings  are  void  for  want  of 
jurisdiction  and  may  be  impeached  in  a  collateral  proceed- 
ing. The  same  principle  obtains  in  case  where  the  sale  is 
inaugurated  and  made  after  the  guardian  has  been  released 

as  such. 

(Grier's  Appeal,  101  Pa.  St.  412;  Phelps  v.  Buck,  40  Ark.  219.) 

So  in  Georgia  the  statute  provides  that  letters  of  guardian- 
ship must  be  granted  at  a  regular  term  of  court,  but  the 
appointment  was  made  at  chambers  in  vacation,  and  such 
guardian  sold  lands  under  the  license  of  the  court,  but  the 
sale  was  held  void  because  the  alleged  appointment  was  void. 
The  purchaser  acquired  no  title,  notwithstanding  he  bought 
in  good  faith  and  without  notice. 

(Dooley  v.  BoH,  87  Ga.  74-13  S.  E.  Rep.  284;  Bell  v.  Love,  72  Ga. 
125.) 

Lands  in  Another  State. 

§  214.  The  authority  of  a  guardian  or  administrator  does 
not  extend  beyond  the  territorial  limits  of  the  state  in  which 
he  was  appointed,  and  it  follows  as  a  necessary  consequence 
that  no  authority  can  be  conferred  upon  him  by  the  court 
which  appointed  him  to  sell  lands  lying  in  another  juris- 


200  TOID    JUDICIAL    AXD    EXECUTION    SALES. 

diction.  Such  order  would  be  void  for  want  of  jurisdiction 
of  the  subject-matter,  the  courts  of  one  state  having  no  juris- 
diction to  order  the  sale  of  lands  lying  within  the  territorial 
limits  of  another  state. 

(McAnulty  v.  McClay,  16  Neb,  418  —  20  N.  W.  Rep.  266;  McNeil  v. 
Society,  66  Cal.  105  —  4  Pac.  Rep.   1096.) 

PETITIONS  FOR  ORDERS  OR  LICENSES  FOR 
SALE  OF  LANDS  OF  DECEDENTS,  INFANTS 
AND  INCOMPETENTS. 

Is  Initial  Step  or  Foundation  of  Order  or  License. 

§  215.  In  proceedings  for  the  sale  of  lands  of  a  decedent, 
infant  or  incompetent,  whether  such  proceedings  are  consid- 
ered in  rem  or  in  personam,  the  petition  occupies  a  position 
analogous  to  that  of  a  complaint  or  declaration  in  an  action  at 
law  or  bill  in  chancery.  Each  should  state  sufficient  to  war- 
rant the  court  to  grant  the  demanded  relief,  whether  it  be  a 
judgment  upon  a  money  demand,  equitable  relief  in  a  suit  in 
chancery,  or  an  order  of  the  court  of  probate  jurisdiction  to 
sell  property.  It  is  elementary  and  fundamental  that  a  judg- 
ment at  law  or  decree  in  equity  must  be  supported  by  a 
written  statement  of  a  cause  of  action.  This  principle  ap- 
plies with  equal  force  to  orders  or  licenses  of  sale  in  pro- 
ceedings in  probate,  for  the  petition  must  be  filed  and  must 
embrace  substance  sufficient  to  disclose  the  necessity  for  a 
sale  of  property  of  the  estate,  infant  or  incompetent,  to 
warrant  the  existence  of  the  order  or  license.  Manifestly, 
in  the  absence  of  special  curative  statutes,  an  order  from 
the  court  directing  the  sale  of  lands  not  founded  upon  a 
petition  previously  filed  therefor  is  granted  without  juris- 
diction and  is  therefore  coram  nan  judlcc  and  void,  upon 
plain  elementary  principles. 

The  title  of  one  who  purchased  lands  of  a  decedent  at  an 
administrator's  sale  is  founded  upon  two  judgments,  the  one 
and  the  first  in  order  being  the  order  granting  letters  testa- 
mentary or  administration,  while  the  other  is  the  order  or 
license  of  sale,  the  validity  of  each  being  essential  to  sustain 
th<  title.  Jurisdiction  to  order  the  sale  depends  upon  the 
general  power  of  the  court  to  exercise  such  jurisdiction,  and 


PETITIONS   FOR   ORDERS    OR    LICENSES    FOR    SALE    OF    LANDS.    201 

upon  a  proper  grant  of  administration  conferring  jurisdic- 
tion thereby  to  deal  with  the  particular  property. 

(Culver  v.  Hardenbaugh,  37  Minn.  225  —  33  N.  W.  Rep.  792;  Paul 
v.  Willis.  69  Tex.  261  —  7  S.  W.  Rep.  357;  Mosseou's  Will,  30  Minn.  202  — 
14  N.  W.  Rep.  887;  Long  v.  Burnett,  13  Iowa,  2S  —  SI  Am.  Dec.  420; 
Bloom  v.  Burdiek.  1  Hill,  130  —  37  Am.  Dec.  299.) 

It  is  thus  that  where  letters  of  administration  on  the  estate 
of  a  living  person  were  granted,  the  appointment  being  void 
because  the  owner  of  the  estate  was  alive,  the  subsequent  pro- 
ceedings of  sale,  no  matter  how  regular,  are  unconditionally 
void,  and  may  be  successfully  impeached  in  a  collateral 
attack. 

(Scott  v.  McNeal,  154  U.  S.  34  —  14  Sup.  Ct.  Rep.  1108;  Melia  ^. 
Simmons,  45  Wis.  334  —  30  Am.  Rep.  746;  Springer  v.  Shavender,  116 
N.  C.  12  —  21  S.  E.  Rep.  45S.) 

The  proceeding  by  the  personal  representative  for  the  sale 
of  lands  of  the  decedent,  notwithstanding  it  is  in  the  course 
of  administration,  is  nevertheless  distinct  and  independent, 
analogous  to  an  action  at  law  or  suit  in  equity,  of  which  the 
petition  is  the  initial  step  and  the  order  or  license  of  sale 
ultimately  issued  pursuant  to  its  prayer  is  the  final  judg- 
ment. 

(Lyons  v.  Hamner,  84  Ala.  197  —  4  So.  Rep.  26;  Dorrance  v.4  Rayns- 
ford,  67  Conn.  1  —  34  Atl.  Rep.  706;  Richardson  v.  Butler,  S2  Cal.  174 
—  23  Pac.  Rep.  9 ;  Goodwin  v.  Sims,  86  Ala.  102  —  5  So.  Rep.  5S7 ;  Tracy 
v.  Roberts,  88  Me.  310  —  34  Atl.  Rep.  68;  Cotton  v.  Holloway.  96  Ala. 
544  —  12  So.  Rep.  172;  Danby  v.  Daws,  81  Me.  30  —  16  Atl.  Rep.  255; 
Wyatt  v.  Rombo,  29  Ala.  510  —  68  Am.  Dec.  89;  Picard  v.  Montross, 
17  So.  Rep.  375;  Robertson  v.  Bradford,  70  Ala.  385;  Teverbaugh  v. 
Hawkins,   82  Mo.   ISO.) 

Substantial    Compliance    with    Requirements    of    Statute    Es- 
sential. 

§  216.  Substantial  compliance  witli  the  requirements  of 
the  statute  as  to  matters  which  shall  be  embodied  in  the  pe- 
tition is  essential  in  order  to  confer  jurisdiction  upon  the 
probate  court  to  order  the  sale  of  lands,  for  jurisdiction  of 
the  court  over  the  estates  of  decedents  and  incompetents  does 
not  flow  from  its  general  jurisdiction  over  the  administra- 
tion of  such  estates,  but  rather  from  the  petition  which  is 
presented  for  the  sale.  Accordingly,  the  pot  it  inn  must  em- 
brace the  grounds  designated  by  statute  as  the  contingencies 


202  VOID    JUDICIAL    AND    EXECUTION    SALES. 

under  which  the  lands  of  a  decedent  or  incompetent  may  be 
sold  under  the  order  of  the  court.  Judicial  authority  relative 
to  the  disposition  of  such  estates  is  restricted  by  the  limita- 
tions of  statute,  for  the  court  of  probate  jurisdiction  in 
theory  of  law  has  no  general  authority  to  dispose  of  the  lands 
of  an  estate  in  process  of  administration,  but  the  power  of 
disposition  is  limited  to  certain  contingencies,  and  the  ex- 
istence of  these  contingencies  designated  by  statute  are 
absolutely  essential  to  invest  the  court  with  power  to  grant 
the  order  of  sale,  and  no  intendments  will  be  extended  to 
support  jurisdiction  from  the  mere  exercise  thereof. 

It  is  manifest  then  that  a  sale  of  land  under  the  order  of 
the  probate  court  based  upon  a  petition  charging  a  purpose 
not  designated  or  recognized  by  statute  is  made  without  juris- 
diction and  must  be  a  mere  nullity,  because  the  petition  fails 
to  allege  facts  sufficient  to  confer  jurisdiction  to  order  the 
land  sold. 

(Tracy  v.  Roberts,  88  Me.  310  —  34  Atl.  Rep.  68;  Hodge  v.  Fabin.  31 
S.  C.  212  —  9  S.  E.  Rep.  820;  Goodwin  v.  Sims,  86  Ala.  102  —  5  So.  Rep. 
587;  Richardson  v.  Butler,  82  Cal.  174  —  23  Pac.  Rep.  9;  Danby  v.  Daws, 
81  Me.  30  —  16  Atl.  Rep.  255;  In  re  Byrne,  112  Cal.  176  —  44  Pac.  Rep. 
467;  Long  v.  Long,  142  N.  Y.  545  —  37  N.  E.  Rep.  486;  Withers  v. 
Patterson,  27  Tex.  491  —  86  Am.  Dec.  643;  Blackburn  v.  Bolan.  88  Mo.  SO; 
Bompart  v.  Lucas,  21  Mo.  598;  Newcomb  v.  Smith,  5  Ohio,  447;  Strouse 
v.  Brennan,  41  Mo.  289;  Farar  v.  Dean.  24  Mo.  16.) 

Thus  in  Mississippi  where  probate  courts  are  regarded  as 
courts  of  general  jurisdiction  as  to  matters  of  probate,  the 
supreme  court  of  that  state  in  a  late  case  said:  "  But  it  is 
uniformly  held  that  the  jurisdiction  of  the  court  over  realty 
for  the  purpose  of  subjecting  it  to  the  payment  of  debts  of 
the  deceased  was  special  and  limited,  and  that  the  facts 
warranting  its  exercise  must  affirmatively  appear  of  record." 

(Ames  v.  Williams.  72  Miss.  760  —  17  So.  Rep.   762.) 

Sale  Can  Only  be  Had  upon  Allegations  of  Statutory  Causes. 

§  217.  The  foundation  of  jurisdiction  in  probate  sale-  is 
the  petition  for  the  order,  and  the  facts  whereon  the  law 
authorizes  a  sale  are  the  elements  of  jurisdiction.  Hence  the 
petition  must  contain  enough  of  these  facts  to  satisfy  the 
requirements  of  the  statute,  and  to  invest  the  court  with  the 
power  lo  make  the  required  order  of  sale.     The  sale  being 


PETITIONS  FOE  ORDEKS  OR  LICENSES  FOR  SALE  OF  LANDS.  203 

'authorized  only  in  case  of  the  existence  of  one  or  more  of 
the  statutory  causes,  the  essential  elementary  principle  upon 
which  jurisdiction  is  founded  is  the  existence  of  the  facts 
necessary  to  thus  authorize  the  court  to  act,  and  that  the 
requisite  initiatory  steps  have  been  taken  pursuant  to  law, 
which  requires  that  the  petition  set  out  one  or  more  of  these 
contingencies  designated  by  statute  under  which  the  prop- 
erty may  be  sold. 

(Schlee  v.  Darrow,  65  Mich.  362  —  32  N.  W.  Rep.  717;  Needham  v. 
Salt  Lake  City,  7  Utah,  319  —  26  Pae.  Rep.  920;  Wilson  v.  Holt,  83 
Ala.  528  —  3  So.  Rep.  321;  Kertchem  v.  George,  7S  Cal.  597  —  21  Pac. 
Eep.   372;    Ames   v.   Williams.    72   Miss.    760  —  17    So.    Rep.    762.) 

So  it  is  held  that  the  petition  should  disclose  the  fact  that 
the  proceedings  are  instituted  in  the  proper  county  as  re- 
quired by  law. 

(Spencer  v.  Jennings,  114  Pa,  St.  618  —  8  Atl.  Rep.  2;  Lloyd  v.  Malone, 
23  111.  43  —  74  Am.  Dec.   179.) 

Essential  Facts  Defectively  Stated. 

§  218.  Conflicting  views  are  maintained  as  to  what  inter- 
pretation should  be  placed  upon  statutes  providing  for  the 
disposition  of  the  estates  of  decedents  and  incompetents, 
though  it  is  evident  from  the  consensus  of  all  judicial  enunci- 
ations that  a  general  policy  prevails  to  environ  this  power  to 
sell  with  judicious  restrictions  and  limitations,  making  the 
jurisdiction  to  sell  dependent  upon  the  conditions  and  con- 
tingencies prescribed  by  statute,  and  in  conformity  with  the 
mode  and  manner  of  procedure  laid  down  by  law  for  the 
exercise  of  this  jurisdiction.  On  the  one  hand  the  adjudica- 
tions establish  a  rule  of  interpretation  to  the  effect  that  when- 
ever there  has  been  a  substantial  compliance  with  the  require- 
ments of  statute,  according  to  a  liberal  construction  validity 
will  be  imparted  to  the  proceedings  of  sale: 

(Bichardson  v.  Butler,  82  Cal.  174  —  23  Pac.  Pop.  9;  Cotton  v.  Hollo- 
way,  96  Ala.  544  —  12  So.  Rep.  172;  Burris  v.  Adams,  96  Cal.  664  —  31 
Pae.  Rep.  565;  Pryor  v.  Downey,  50  Cal.  388  —  19  Am.  Hep.  656;  Stuart 
v.  Allen.  16  Cal.  473  —  76  Am.  Dec  551;  Wright  v.  Edwards,  10  <>iv. 
298;  Read  v.  Howe,  553;  Stiver's  Appeal,  56  Pa.  St.  '.» :  Montgomery  v. 
Johnson,   31    Ark.   74.) 

while  on  the  other  hand  the  necessity  for  a  strict  compliance 
with  the  terms  of  the  statute  is  adhered  to  with  uniform 
tenacity  in  order  to  support  the  sale. 


204  VOID    JUDICIAL    AND    EXECUTION    SALES. 

(Long  v.  Long,  142  N.  Y.  545  —  37  N".  E.  Rep.  4S6;  Fell  v.  Young,  63 
111.  106;  Gelstrop  v.  Moore,  26  Miss.  206  —  59  Am.  Dec.  254;  Martin  v. 
Williamson,   42   Miss.   210.) 

If  sufficient  averments  are  contained  in  the  petition  to 
require  the  court  to  act  upon  it,  it  is  immaterial  that  such 
facts  are  defectively  stated,  jurisdiction  is  nevertheless 
thereby  conferred  sufficiently  to  render  all  subsequent  pro- 
ceedings invulnerable  upon  a  collateral  assault  upon  that 
ground,  just  as  in  any  other  suit  or  action. 

(McCullough  v.  Estes,  20  Ore.  349  —  25  Pac.  Rep.  724;  Bryan  v.  Bauder, 
23  Kan.  95;  Rowe  v.  Palmer,  29  Kan.  337;  Moffitt  v.  Moffitt,  69  111.  641; 
Hobson  v.  Ewan,  62  111.  146.) 

Manifestly,  when  a  sufficient  cause  for  an  order  of  sale  is 
united  with  an  alleged  cause  not  recognized  as  such  by  the 
statute,  the  jurisdiction  of  the  court  is  nevertheless  invoked 
and  the  proceedings  are  not  void. 

(Walker  v.  Goldsmith,   14  Ore.   125  —  12  Pac.  Rep.   537.) 

Administration  Proceedings  Indivisible  though  Sale  Inde- 
pendent. 
§  219.  The  administration  of  an  estate  is  in  reality  but 
one  indivisible  judicial  proceeding  from  the  initial  step  of 
the  grant  of  administration  to  the  final  discharge,  whether 
the  proceedings  are  considered  as  in  rem  or  in  personam, 
yet,  the  authorities  are  united  on  the  proposition  that  the 
application  to  sell  is  a  distinct  and  independent  proceeding 
to  the  extent  that  jurisdiction  to  order  the  sale  must  exist, 
aside  from  the  general  jurisdiction  of  the  proceedings  of 
administration  invoked  by  the  proper  original  grant  of 
letters. 

(Culver  v.  Hardenbaugh.  37  Minn.  225  —  33  X.  W.  Rep.  792;  Paul  v. 
Willis,  69  Tex.  261—7  S.  W.  Rep.  357;  Johns  v.  Tiers,  114  Pa.  St.  611— 
7  Atl.  Rep.  923;  Chamberlain  v.  Chamberlain,  20  Atl.  Rep.  1085;  Long 
v.  Burnett.  13  Iowa,  2s  —  81  Am.  Dec.  420;  Frazier  v.  Steenrod,  7  Iowa. 
339  —  71   Am.   Dec.   4  17.) 

Hence,  when  probate  proceedings  for  the  sale  of  lands  of 
an  estate  are  alluded  to  as  1  icing  distinct  and  independent, 
courts  simply  mean  that  to  the  validity  thereof  it  is  essential 
that  the  application  should  be  made  in  substantial  compli- 
ance with  the  provisions  of  the  statute  in  this  regard,  and 


PETITIONS   FOR   ORDERS    OR    LICENSES    FOR   SALE    OF    LANDS.    205 

when  not  so  made  there  is  a  lack  of  power  in  the  court  to 
order  the  fiduciary  to  sell  the  land  involved. 
(Burns  v.  Kennedy,  108  Cal.  331  —  41  Pac.  Rep.  458.) 

Petition  Must  Show  the  Existence  of  Debts. 

§  2°0  Even  in  states  where  a  liberal  rule  of  construction 
obtains  as  to  proceedings  of  sale  it  is  held  that  an  averment 
in  a  petition  of  the  existence  of  debts  against  the  estate  in  a 
certain  or  ascertained  amount  is  an  essential  and  juris- 
dictional allegation  to  grant  an  order  of  sale,  without  sucl 
an  averment  the  sale  is  fatally  defective  and  subject  to  suc- 
cessful collateral  impeachment.  It  is  held  that  the  record 
should  show  affirmatively  that  the  facts  exist  and  were  pre- 
sented to  the  court  which  will  bring  the  application  within 
the  provisions  of  the  statute  conferring  jurisdiction  to  order 
the  sale.     Such  averment  is  therefore  held  to  be  mdispen- 

CO  nip 

'Cotton  v.  Holloway,  96  Ala.  544-12  So.  Rep.  172;  Speneer  y.  Jen- 
nings, 114  Pa.  St.  618-8  Atl.  Rep.  2;  Appeal  of  Hilton,  9  Atl.  Rep. 
434;   Haynes  v.  Meeka,  20  Cal.  288.) 

Averment  of  no  Personal  Property  Essential. 

§  221.  Pursuant  to  a  well-settled  policy  of  the  law,  the 
estates   of  heirs    and   incompetents    are   zealously   guarded 
against  useless  and  squanderous  dissipation.     In  harmony 
with  this  laudable  policy,  whenever  the  necessity  may  arise 
to  provide  funds,  there  must  first  be  a  disposition  of  the 
personal  property  to  furnish  such  pecuniary  relief  before 
resort  to  the  real  estate  can  be  had.     The  provision  of  statute 
requiring  an  averment  in  the  petition  to  the  effect  that  there 
is  no  personal  property,  or  that  there  is  an  insufficiency  ol 
personal  assets  to  pay  the  obligations  of  the  decedent,  and 
that  the  sale  of  the  land  is  necessary  to  pay  such  debts,  are 
imperative  and  mandatory,  being  essentially  jurisdictional 
facts,  without  which  the  court  has  no  power  to  order  the  sale 
of  the  land. 

(Kingsland  v.  Murray,  133  N.  Y.  170-30  N.  E  Rep.  845^ Smith  v. 
BranJn,  99  Ala.  445-12  So.  Rep.  W:  Macgill  v.  Hyatt,  80 Md.  253- 
30Atl.Rep.710;Kentv.Mansel,  L01  Ala.  334  -14  So  Rep.  ^ Joun| 
v.  Wittenmyre,  123  DL  203-  14  V  E.  Rep.  869;  Stuart  v.  Allen,  10 
Cal.  473-76  Am.  Dec.  551;  Gregory  v.  Tabor.  19  Cal.  397.) 


206  VOID   JUDICIAL    AND    EXECUTION    SALES. 

But  where  the  statute  authorized  the  probate  court  to  order 
the  sale  of  lands  of  a  decedent  after  the  personal  property  has 
been  exhausted,  a  sale  made  under  an  order  granted  upon  a 
petition  containing  an  averment  in  this  regard  that  the  per- 
sonal estate  was  wholly  insufficient  to  pay  the  debts  was  con- 
sidered void. 

(Hays  v.  McNealy,  16  Fla.  409;  Parchman  v.  Charlton,  1  Coldw.  381.) 

And  where  a  sale  in  administration  was  made  under  an 
order  the  petition  for  which  was  entirely  silent  as  to  the  per- 
sonal estate  and  it  was  not  brought  to  the  attention  of  the 
court,  the  sale  was  decided  void  collaterally  upon  juris- 
dictional grounds. 

(Sloan  v.   Sloan,   25  Fla.   53  —  5   So.   Rep.   603.) 

So  under  a  statute  authorizing  a  sale  to  pay  debts  when 
the  personal  estate  is  insufficient  an  order  of  sale  was  held 
void  which  was  made  upon  a  petition  alleging  that  the  pur- 
pose of  the  sale  was  to  settle  up  the  business  of  the  estate  and 
pay  certain  debts  and  demands  due  and  owing  by  the  estate. 
(Needham  v.  Salt  Lake  City,  7  Utah,  319  —  26  Pac.  Rep.  920.) 

To  Pay  Expenses  of  Administration. 

§  222.  A  sale  for  an  unauthorized  purpose  as  shown  by  the 
averments  contained  in  the  petition  is  void  because  the  de- 
fect is  not  only  fatal  but  is  affirmatively  apparent  upon  the 
face  of  the  record ;  as  for  instance,  a  sale  for  the  purpose 
merely  of  paying  the  expenses  of  administration,  when  the 
statute  authorizes  no  sale  for  such  purpose. 

(Mays  v.  Rogers,  52  Ark.  425  —  12  S.  W.  Rep.  579;  Duncan  v.  Veal, 
49  Tex.  603;  Farrar  v.  Dean,  24  Mo.  16;  Fitch  v.  Whitbeck.  2  Barb. 
Ch.  161.) 

But  under  a  statute  providing  that  the  lands  of  a  decedent 
may  be  sold  to  pay  liabilities  of  the  estate  if  the  personal 
estate  is  insufficient,  and  which  makes  the  expenses  of  ad- 
ministration the  first  in  order  of  the  liabilities  to  be  dis- 
charged, a  decedent's  lands  may  be  sold  to  pay  the  expenses 
of  administration,  and  an  averment  of  such  expenses  is  mani- 
t"-lv  sufficient  to  invoke  the  jurisdiction  of  the  court  to 
order  the  sale. 

(Falley  v.  Gribling,  128  Ind.  110  —  26  N.  E.  Rep.  794;  Dunning  v. 
Driver,  25  Ind.  269.) 


PETITIONS    FOR   ORDERS    OR    LICENSES    FOR   SALE    OF    LANDS. 


207 


Account  of  Personal  Estate  by  Fiduciary. 

§  223.  The  determination  as  to  the  necessity  for  a  sale 
does  not  devolve  upon  the  fiduciary,  but  is  a  conclusion  drawn 
by  the  court  from  the  facts  presented  by  the  petition,  in  the 
light  of  the  statute,  and  the  petition  is  the  sole  source  from 
which  the  material  facts  warranting  the  sale  and  supporting 
the  order  are  derived. 

(Wilson  v.  Holt.  S3  Ala.  528  —  3  So.  Rep.  321;  Spencer  v.  Jennings, 
114  Pa.  St.  618  —  8  Atl.  Rep.  2;  Pryor  v.  Downing,  50  Cal.  398—  19  Am. 
Eep.  656;  Wilson  v.  Armstrong,  42  Ala.  168  —  04  Am.  Dec.  635.) 

Accordingly,  it  is  held  that  the  petition  must  affirmatively 
disclose  by  appropriate  allegations  the  necessity  for  resort- 
ing to  the  sale  of  the  lands  of  the  estate. 

(Renner  v.  Ross,  111  Ind.  209  —  12  N.  E.  Rep.  SOS.) 
So  in  case  the  statute  provides  that  when  the  adminis- 
trator suspects  the  value  of  the  personal  estate  of  the  decedent 
inadequate  to  liquidate  the  liabilities,  he  shall  present  an 
account  of  such  personal  estate  to  the  court,  whereupon  an 
order  may  issue  to  interested  parties  to  show  canse  if  any 
they  have'  why  the  lands  of  the  estate  should  not»be  sold,  the 
account  showing  the  deficiency  of  the  personal  estate  is  con- 
sidered an  indispensable  jurisdictional  requirement,  and  a 
sale  consummated  in  a  proceeding  where  it  is  wanting  is  held 
to  be  a  mere  nullity. 

I  Vtkins  v.  Kiiman.  20  Wend.  241  —  32  Am.  Dec.  534:  Bloom  v.  Bur- 
dick  1  Hill.  130  —  37  Am.  Dec.  299;  Wood  v.  McChesney,  40  Barb. 
417:  Jackson  v.  Crawfords,  12  Wend.  533;  Ford  v.  Walsworth,  15  Wend. 
449;  Corwin  v.  Merritt,  3  Barb.  Ch.  341.) 

Claim  Barred  by  Statute  of  Limitations. 

§  224.  In  Xew  York  it  is  held  that  a  sale  based  upon  a 
petition  by  a  creditor  for  an  order  for  the  sale  of  decedent's 
lands,  where  the  claim  of  the  creditor  set  out  in  the  petition 
is  barred  by  the  statute  of  limitations,  is  void  for  want  of 
jurisdiction,  as  such  alleged  claim  is  regarded  as  no  claim  at 
all,  and  hence  no  jurisdictional  ground  for  a  sale  is  shown  by 
the  petition,  and  the  sale  must  consequently  fall  becfAise  of 
the  inherent  infirmity. 

(Butler  v.  Johnson,  111  X.  Y.  204  —  18  N.  E.  Rep.  643.) 
And  in  Pennsylvania  when  the  lien  of  the  debts  of  the 
decedent  upon  his  lands  has  expired  by  the  limitation  of  time 


208  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

prescribed  by  the  statute  in  this  regard,  the  orphans'  court 
has  no  jurisdiction  to  direct  the  administrator  or  executor  to 
sell  the  land  for  the  payment  thereof.  Manifestly,  if  the 
petition  shows  the  fact  of  limitation  the  sale  must  be  void 
collaterally  by  reason  of  such  disclosure. 

(Smith  v.   Wildman,   178  Pa.  St.   245  —  35  Atl.   Rep.   1047.) 

Verification  of  the  Petition. 

§  225.  Notwithstanding  the  statute  requires  that  the  peti- 
tion be  verified,  the  want  of  the  verification  is  nevertheless 
not  considered  in  the  light  of  a  jurisdictional  fatality,  and  a 
sale  under  an  order  based  upon  a  petition  thus  defective  is 
not  open  to  collateral  impeachment  for  this  defect. 

(Hamiel  v.  Donnelly.  75  Iowa,  93  —  39  X.  W.  Rep.  210:  Ellsworth  v. 
Hall,  4S  Mich.  407  —  12  X.  W.  Rep.  512;  Tromble  v.  Williams.  IS  Xeb. 
144  —  21  X.  W.  Rep.  716;  Williamson  v.  Warren,  55  Miss.  199.) 

And  upon  a  like  principle  a  sale  by  an  administrator  or 
guardian  is  not  void  because  the  petition  was  verified  by  the 
attorney  for  the  fiduciary  instead  of  the  party  himself. 

(Meyers  v.  McGavock,  39  Xeb.  843  —  5S  X.  W.  Rep.  522.) 

Interested  Parties  Named  in  the  Petition. 

§  226.  In  all  those  states  where  sales  of  land  by  adminis- 
trators, executors  and  guardians  under  the  order  of  the  court 
are  considered  as  proceedings  in  personam  and  adversary  to 
the  interested  parties,  and  this  is  the  rule  in  a  majority  of 
the  states,  it  is  absolutely  essential  that  all  interested  parties 
be  made  parties  to  the  proceedings  seeking  a  sale  of  the  lands 
of  the  estate.  In  such  ease  the  fiduciary  or  other  petitioner 
occupies  the  position  of  plaintiff  in  the  proceeding  and  the 
heirs  or  other  interested  persons  are  the  defendants.  In 
view  of  the  elementary  and  fundamental  proposition  that  no 
one  can  be  deprived  of  his  property  or  bound  in  his  rights 
except  by  due  process  of  law,  the  petition  should  disclose  who 
the  heirs  are,  and  a  failure  to  name  them  and  give  them  the 
notice  required  by  law  has  often  been  considered  fatal  in  its 
consequences  upon  the  proceedings. 

(Pony  v.  Adams.  9S  X.  0.  167  —  3  S.  E.  Rep.  729;  Dorrance  v.  Rayns- 
ford,  67  Conn.  1  —  34  All.  Rep.  706;  Harrison  v.  Harrison.  106  X.  C. 
2S2— U  S.  E.  Rep.  356:  Dickons  v.  Long,  109  X.  C.  165  —  13  S.  E.  Rep. 
841;  Adams  v.  Jeffries,  12  Ohio  253  —  40  Am.  Dec.  477:  Reynolds  v. 
Stansbnry,  20  Ohio,  344  —  55  Am.  Dec.  459;  Menefee  v.  Marge,  4  S.  E. 


PETITIONS   FOR   ORDERS    OR    LICENSES    FOR    SALE    OF    LANDS.    ".'09 

Rep.  726;  Tn  re  John's  Estate,  18  \.   Y.  Supp.  172;  Guy  v.  Pierson,  21 
hid.  IS;  Jenkins  v.  Young,  35  Hun,  569.) 

Though  even  where  it  is  held  that  the  heirs  must  he  made 
parties  and  notified,  it  is  held  that  where  a  petition  is  filed 
against  the  "  Unknown  heirs  "  of  the  estate,  a  sale  under  the 
order  made  thereon  is  not  void  collaterally,  upon  the  theory 
that  the  law  confers  jurisdiction  of  the  subject-mat  tor,  and 
this  jurisdiction  is  invoked  by  the  presentation  of  the  petition 
and  service  of  notice  by  publication,  and  the  determination 
of  the  court  upon  the  sufficiency  of  the  petition  is  conclusive 
when  called  in  question  in  a  collateral  proceeding. 

(Stanley  v.  Noble,  59  Iowa,  666  —  13  N.  W.  Rep.  839.) 

But  in  states  where  sales  by  administrators  and  executors 
under  the  order  of  the  court  are  considered  as  proceedings 
in  rem,  to  which  all  the  world  are  parties,  upon  well-estab- 
lished and  ancient  principle,  the  heirs  need  not  be  made 
parties  to  the  petition  for  an  order  of  sale,  and  the  omission, 
even  when  required  by  statute,  is  regarded  in  the  light  of 
more  irregularity,  not  constituting  an  element  of  jurisdic- 
tional infirmity. 

(Lyons  v.  Hamner,  84  Ala.  197  —  4  So.  Rep.  26;  Bingham  v.  Jones, 
84  Ala.  202  —  4  So.  Rep.  409;  McPherson  v.  Cunliff,  11  S.  &  R.  422  —  14 
Am.  Dec.  642;  Morris  v.  Hogle,  37  111.  150  —  87  Am.  Dec.  243.) 

Thus  in  Washington,  under  a  statute  which  requires  the 
court,  upon  petition  of  the  administrator  for  an  order  of  sale 
of  real  estate  of  the  decedent,  to  issue  an  order  directing  all 
parties  interested  to  appear  and  show  cause  why  such  an 
order  should  not  be  made,  the  names  of  interested  parties, 
though  known,  need  not  be  mentioned. 

(Furth   v.   Mortgage  Co.,    13   Wash.    73  —  42   Pac.   Re]..    523.) 

As  to  the  necessity  of  making  the  ward  a  party  to  a  petition 
by  the  guardian  for  the  sale  of  his  lands,  the  authorities  are 
conflicting,  the  contrariety  being  attributable  either  to  the 
theory  adopted  by  the  court  as  to  the  nature  of  such  sales, 
whether  adversary  or  not,  or  to  peculiar  statutory  provisions. 
Where  such  proceedings  are  considered  not  adversary,  the 
guardian  represents  the  ward  to  the  extent  that  the  filing  of 
an  ex  parte  petition  sufficient  in  form  confers  jurisdiction 
14 


210  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

and  the  ward  need  not  be  made  a  party  nor  is  he  entitled  to 
notice  of  its  pendency. 

(Scarf  v.  Aldrich,  97  Cal.  360  —  32  Pac.  Rep.  324;  Myers  v.  McGavoek, 
39  Neb.  843  —  5S  N.  W.  Rep.  522;  Thaw  v.  Ritchie,  136  U.  S.  519  —  10 
Sup.  Ct.  Rep.  1037;  Furnish  v.  Austin,  7  S.  W.  Rep.  399;  Railway  Co. 
v.    Blythe,    69    Miss.    939  —  11    So.    Rep.    111.) 

But  where  the  proceedings  of  sale  of  a  ward's  lands  by  the 
guardian  are  held  to  be  adversary  to  the  ward  he  must  be 
made  a  party  to  the  petition,  and  must  receive  such  notice  as  the 
lav;  provides  in  such  case  in  order  to  conclude  him  by  divest- 
ing him  of  his  interest  in  the  land. 

(Roche  v.  Waters,  72  Md.  264  —  19  Atl.  Rep.  535;  Moore  v.  Hood,  9 
Eich.  Eq.  311  —  70  Am.  Dec.  210;  Hunter  v.  Hatton,  4  Gill,  115  —  45 
Am.  Dec.  117;  In  re  Estate  of  Hunter,  84  Iowa,  3S8  —  51  X.  W.  Rep. 
20:  Washburn  v.  Carmichael,  32  Iowa,  475;  Lyon  v.  Vannatta,  35  Iowa, 
521.) 

Property  to  he  Sold  Should  be  Described. 

§  227.  The  filing  of  a  proper  petition  confers  jurisdiction 
of  the  subject-matter  —  the  land  sought  to  be  sold  —  there- 
fore the  property  should  be  described  in  it  with  sufficient 
particularity  so  as  to  indentify  it,  in  order  to  vest  the  court 
with  power  to  order  its  sale. 

(Stanley  v.  Noble,  59  Iowa.  666  —  13  N.  W.  Rep.  839;  Blackwell  v. 
Townsend,  91  Ky.  609  —  16  S.  W.  Rep.  5S7;  Frazier  v.  Steenrod,  7  Iowa. 
339  —  71  Am.  Dec.  447;  Verry  v.  McClellan,  6  Gray,  535  —  66  Am.  Dec. 
423.) 

So  by  statute  in  California  a  petition  by  an  administrator 
to  sell  land  must  describe  the  lands  owned  by  the  decedent 
as  well  as  the  condition  and  value  of  each  distinct  parcel. 
The  petition  referred  to  the  inventory  which  described  sev- 
eral lots,  the  description  of  two  of  them  were  void  for  un- 
certainty, but  the  parcel  sold  was  properly  designated,  but 
the  sale  was  held  void  because  the  whole  estate  was  not  prop- 
erly described. 

(Wilson  v.  Hastings,  66  Cal.  243  —  5  Pac.  Rep.  217.) 
But  a  different  conclusion  in  this  regard  has  been  reached 
by  the  supreme  court  of  thai  state  in  a  recent  case  as  to  sales 
by  guardians,  where  a  defective  description  in  the  petition 
did  not  make  the  sale  void  where  the  order  of  sale  correctly 
described  the  land. 

(Scarf  v.  Aldrich,  97  Cal.  360  —  32  Pac.  Rep.  324.) 


PETITIONS   FOE   OEDEES   OB    LICENSES    FOB    SALE    OF    LANDS.    211 

There  is  a  conflict  among  the  authorities  as  to  the  necessity 
of  an  accurate  description  in  the  petition  of  an  administra- 
tor of  the  land  of  the  estate  sought  to  he  sold.  Where  the 
statute  in  explicit  terms  required  both  the  petition  and  order 
of  sale  to  describe  the  land,  a  sale  was  sustained  after  con- 
firmation where  the  petition  asked  for  an  order  to  sell  any 
and  so  much  of  the  lands  of  the  would  be  sufficient 

to  defray  the  debts  of  the  decedent,  and  a  similar  description 
was  embraced  in  the  order  of  sale. 

(Wells  V.   Polk,   3G  Tex.    120.) 

And  where  the  petition  to  sell  described  the  land  as  being 
located  in  a  certain  county,  where  the  statute  required  a 
definite  description,  but  the  order  of  sale  and  subsequent  pro- 
ceedings gave  a  full  and  complete  description,  the  sale  was 
held  valid  in  a  collateral  action  of  ejectment  to  recover  the 
possession  of  the  premises  from  the  purchaser,  and  this  upon 
the  principle  that  whereas  the  petition  contained  sufficient 
averments  to  challenge  the  attention  of  the  court  as  to  its 
merits,  there  is  no  want  of  jurisdiction,  and  hence  the  pro- 
ceedings of  sale  could  not  be  impeached  in  a  collateral  action. 

(Howbert  v.  Heyle,  47  Kan.  58  —  27  Pac.  Kep.  116;  Bryan  v.  Baucier. 
23  Kan.  95.) 

But  we  apprehend  that  when  the  petition  is  entirely  silent 
as  to  description  of  the  land,  and  where  the  statute  requires 
that  it  contain  a  description  of  the  property  sought  to  be 
subjected  to  the  order  of  sale,  that  a  failure  of  jurisdiction  is 
the  inevitable  consequence  of  such  omission,  for  in  such  case 
there  is  nothing  to  call  forth  the  action  of  the  court.  The 
subject-matter  is  then  not  brought  before  the  tribunal,  and 
with  jurisdiction  wanting  oyer  that  the  proceedings  must  of 
necessity  be  coram  non  judice  and  void.  Upon  plain  and 
fundamental  principles,  we  think  it  is  an  essential  jurisdic- 
tional pre-requisite  to  a  valid  order  of  sale  that  the  petition 
whereon  it  is  based  contain  an  adequate  description  of  the 
land  sufficient  for  intelligent  comprehension  and  indentifi- 
cation. 

Manifestly,  where  the  petition  as  well  as  the  order  of  sale 
made  thereon  contained  a  description  so  indefinite  and  uncer- 


2V2-  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

tain  as  to  make  it  impossible  to  locate  the  property,  the  sale 
is  void,  and  can  not  be  validated  even  by  a  curative  statute. 
(Hazleton  v.  Bogardus,  S  Wash.  102  —  35  Pac.  Rep.  602.) 

Statutes  Providing;  Sale  can  not  be  Avoided,  Certain  Things 
Appearing. 

§  228.  In  several  states  special  statutes  have  been  passed 
prescribing  that  when  certain  things  appear  to  have  been 
done  in  and  about  an  administrator's  or  guardian's  sale  it 
shall  not  be  avoided  when  attacked  by  any  heirs  or  ward. 
Among  them  are  that  the  fiduciary  be  licensed  by  the  proper 
probate  court  having  jurisdiction  of  the  estate,  that  is  where 
the  proceedings  are  pending,  that  he  gave  the  prescribed 
bond  and  took  the  prescribed  oath,  gave  the  notice  of  sale 
as  required  by  the  statute  and  sold  the  land  in  good  faith. 
When  these  appear  to  exist  it  is  wholly  immaterial  whether 
any  of  the  preliminary  or  initiatory  steps  in  obtaining  the 
order  of  sale  have  been  taken  or  not,  the  sale  can  not  be 
avoided  in  a  collateral  action,  the  irregularity,  if  any  must 
be  taken  advantage  of  by  appeal. 

(Aekerson  v.  Orchard.  7  Wash.  356  —  34  Pac.  Rep.  1106;  Rumrill  v. 
Bank,  28  Minn.  202  —  0  X.  W.  Rep.  731;  Mohr  v.  Porter,  51  Wis.  4s7  — 
8  X.  W.  Rep.  364 ;  Weld  v.  Johnson  Mfg.  Co.,  84  Wis.  537  —  54  X.  W. 
Rep.  335;  Reynolds  v.  Schmidt,  20  Wis.  374;  Marvin  v.  Schilling,  12 
Mich.    356-    Mohr   v.   Manierre,    101    TT     S.    417.) 

Policy  of  the  Law  Regarding  Probate  Sales. 

§  229.  It  is  the  policy  of  the  law  to  maintain  and  uphold 
judicial  sales,  for  which  reason,  in  case  of  the  silence  of  the 
record,  the  presumption  obtains  according  to  some  adjudica- 
tions, that  ;i  proper  petition  was  filed,  and  that  the  court 
passed  upon  every  question  in  issue  and  its  order  of  sale  is 
supported  by  sufficient  proof. 

(Scot!  v.  Scott,  85  Ky.  385—  5  S.  W.  Rep.  423;  Currie  v.  Franklin. 
51  Ark.  338  —  11  S.  W.  Rep.  477;  Schaale  v.  Waaey,  70  Mich.  414  —  38 
X.  W.  Rep.  317:  Rowden  v.  Brown,  91  Mo.  42'.)  —  4  S.  W.  Rep.  129; 
Schnell  v.  Chicago,  38  III.  382  —  87  Am.  Dec  304;  Hobson  v.  Ewan,  62 
111.  146;   Grignon   v.  Astor,  2   Bow.  319.) 

Therefore  petitions  in  probate  and  guardians'  sales  are 
liberally  construed,  under  a  well-established  policy  of  the 
law,  favoring  the  maintenance  rather  than  the  destruction 
of  titles  thereunder,   and   for  the  purpose  of  avoiding  the 


JURISDICTION  DEPENDENT  OX   SUFFICIENT  FACTS.  213 

consequences  resulting  from  the  usually  harsh  operation  of 
thf  rule  of  law  applicable  to  an  avoidance  of  probate  sales 
upon  the  grounds  of  insufficient  petitions. 

(Moffitt  v.  Moffitt,  69  111.  641;  Bowen  v.  Bond,  SO  111.  351;  .Maun-  v. 
Parish.  26  Ohio  St.  636;  Win--  v.  Dodge,  80  111.  564;  Wright  v.  Ware, 
50  Ala.  549;   Fitch  v.  .Miller,  20  (a I.     , 

JURISDICTION    DEPEXDEXT    OX    SUFFICIEXT 
AVERMEXT  OF  FACTS. 

Averment  of  Sufficient  Facts  and  not  Their  Truth  Essential. 

§  230.  The  foundation  of  jurisdiction  over  the  subject- 
matter  is  the  filing  of  a  petition  containing  allegations  of 
sufficient  facts  upon  which  a  sale  is  authorized  under  the 
particular  statute  where  the  application  is  made  Enough 
facts  must  be  alleged  to  bring  the  ruse  within  the  statute,  or 
else  the  court  will  have  no  power  to  make  the  order  of  sale. 
It  is  not  absolutely  essential  that  the  elementary  jurisdic- 
tional facts  contained  in  the  petition  be  true,  for  even  if  false, 
jurisdiction  is  still  conferred,  if  the  original  grant  was  valid, 
because  it  depends  upon  the  averments  of  such  facts  and  not 
upon, their  actual  existence,  for  which  reason  the  truth  or 
falsity  of  these  facts  does  not  affect  the  jurisdiction  of  the 
court. 

The  petition  for  an  order  of  sale  occupying  a  position 
analogous  to  a  complaint,  if  sufficient,  its  filing  calls  upon  the 
court  to  exercise  its  jurisdiction  by  inquiring  into  and  de- 
termining the  facts  as  to  whether  or  not  the  matters  alleged 
therein  arc  true  or  false,  and  the  order  which  either  grants 
or  refuses  the  application  to  sell,  is  a  judgment  pronounced 
i  ion  the  issues  made  by  the  averments  in  the  petition.  In 
contemplation  of  law  these  allegations  of  facts  ar  I  by 

the  heirs,  and  the  determination  of  the  courl  upon  such  issue 
is  a  conclusive  adjudication  upon  the  questions  presented, 
that  is  as  to  whether  or  not  the  sale  is  a  necessity,  at  least  in 
so  far  as  a  collateral  attack  is  concerned. 

(Richardson  v.  Butler,  82  Cal.  174  —  23  Pac.  Rep.  0:  Norman  v.  Olney, 
64  Mich.  553  —  31  X.  W.  Rep.  555;  Curran  v.  Kuby,  :;7  .Minn.  330  —  33 
N.  W.  Rep.  <to~:  Chardavoyne  v.  Lynch.  82  Ala,  ::7G  —  3  So.  Rep.  98; 
Doan*  v.  Wilcoxen,  :.>:.  Fla.  980  —  7  So.  Rep.  163;  Atkins  v.  Kinnan.  20 
Wend.  241  —  32  Am.  Dec.  534;  Merrill  v.  Harris,  26  N.  H.  142  —  57  Am. 


214  VOID    JUDICIAL    AND    EXECUTION    SALES. 

Dec.  359;  Sateher  v.  Satcher,  41  Ala.  26  —  91  Am.  Deo.  49>:  Lynch  v. 
Baxter,  -i  Tex.  431  —  51  Am.  Dec.  735:  Young  y.  Lorain,  11  111.  624  —  52 
Am.  Dec.  463;   Comstock  v.   Crawford..   3    Wall.   396.) 

Falsity  of  Facts  can  not  be  Shown  Collaterally. 

§  231.  Under  familiar  principles,  where  facts  sufficient 
are  exhibited  in  the  petition,  and  the  court  has  pronounced 
its  judgment  in  the  matter,  jurisdiction  having  vested,  such 
judgment  or  order  is  no  more  than  erroneous  if  in  reality 
the  facts  set  up  in  the  petition  are  false,  and  the  error  mani- 
festly must  be  corrected  by  appeal,  or  perhaps  some  other 
expedient  proceeding  appropriate  to  obtain  relief  from  the 
consequences  of  such  determination.  Collateral  impeach- 
ment is  unavailing,  for  it  can  not  be  shown  collaterally  that 
the  facts  contained  in  the  petition  are  untrue. 

(Goodwill  v.  Willis.  86  Ala.  102  —  5  So.  Rep.  587:  Seymour  v.  Ricketts, 
21  Xeb.  240  —  31  X.  W.  Rep.  781;  Camden  v.  Plain,  91  Mo.  117  —  4  S. 
W.  Rep.  86:  Stuart  v.  Allen,  16  Cal.  473  —  76  Am.  Dec.  551;  Jackson  v. 
Crawfords,  12  Wend.  533:  Fiteh  v.  Miller.  20  Cal.  382;  Grignon  v.  Astor,  2 
How.  319:  McCaully  v.  Harvey,  49  Cal.  497:  Bowen  v.  Bond.  SO  111.  351.) 

However,  if  it  is  affirmatively  shown  by  the  record  that 
the  required  proof  of  such  facts  was  not  made,  the  order  of 
sale  is  void. 

(Thompson  v.  Boswell,  97  Ala.  570  —  12  So.  Rep.  So;  Moore  v.  Cot- 
tingham,  113  Ala.  148  —  20  So.  Rep.  994.) 

Notwithstanding  it  be  conceded  that  the  jurisdiction  of 
tlir  court  of  probate  in  proceedings  of  this  nature  is  special 
and  limited,  yet  if  it  affirmatively  appear  from  the  record 
that  the  jurisdictional  facts  were  presented  and  ascertained 
and  determined  by  the  court,  such  adjudication  is  con- 
clusive upon  collateral  attack.  The  order  of  sale  is  an  ad- 
judication thai  the  essential  facts  to  confer  jurisdiction  exist 
as  alleged  in  the  petition. 

(Linman  v.  Riggins,  40  La.  Ann.  761—5  So.  Rep.  49:  Marquis  v. 
Davis,  113  Ind.  219  —  15  X.  E.  Rep.  251;  Edwards  v.  Moore,  99  X.  C. 
1  —  5  S.  E.  Rep.  13;  Simmons  v.  Saul,  138  U.  S.  439  —  11  Sup.  Ct.  Rep. 
369;  Watl  v.  Rambo,  29  Ala.  510  —  68  Am.  Dec.  89;  McKee  v.  Simpson, 
36   Fed.    Rep.    248.) 

But  it  seems  that  in  Florida  and  Connecticut  the  finding 
of  the  probate  court  upon  the  presentation  of  the  petition  for 
an  order  of  sale,  thai  there  are  debts  is  not  conclusive,  but 


NOTICE    OF    PENDENCT   OF   APPLICATION'    FOR   OrxDER.      215 

merely  prima  facie  evidence  of  the  existence  of  the  some, 
and  hence  the  falsity  of  such  finding  will  be  open  to  collateral 
inquiry.  This  is  however  opposed  to  the  weight  of  authority, 
and  nowhere  contended  save  in  the  two  states,  as  far  as 
our  researches  have  gone. 

(Deans  v.  Wilcoxen,  25  Kla.  980  —  7  So.  Rep.  163;  Shclton  v.  Hadlock, 
62  Conn.  143  —  25  Atl.  Rep.  483.) 

NOTICE  OF  THE  PENDENCY  OF  THE  APPLICA- 
TION FOR  AN  ORDER  OR  LICENSE  OF  SALE 
NOT  CONSIDERED  AN  INDISPENSABLE  RE- 
QUIREMENT. 

Two  Distinct  Views  as  to  Probate  Sales. 

§  232.  Two  distinct  views  are  maintained  by  the  courts 
of  this  country  as  to  the  nature  of  sales  made  by  adminis- 
trators, executors  and  guardians.  By  some  it  is  contended 
and  has  become  a  settled  rule  of  property,  that  such  pro- 
ceedings arc  in  rem,  to  which  all  the  world  are  parties,  and 
by  others  that  they  are  not  such  proceedings,  but  on  the  con- 
trary are  distinct  and  independent  adversary  proceedings 
in  personam,  and  unless  the  heirs  are  made- parties  to  the 
proceedings  and  are  served  with  the  notice  required  by  law, 
the  order  of  sale  is  void  as  to  them. 

Manifestly,  if  the  latter  theory  obtains,  then  on  the  plainest 
of  fundamental  principles  the  defendants  or  parties  inter- 
ested must  be  brought  before  the  court  which  seeks  to  adjudi- 
cate upon  their  rights  and  property,  and  brought  in  by  some 
admonitory  proceeding  tantamount  to  the  service  of  process, 
so  that  an  opportunity  is  afforded  for  the  presentation  of  ob- 
jections to  the  granting  of  the  prayer  of  the  petition  to  sell, 
should  they  deem  resistance  advisable  or  expedient.  In  such 
case  notice  is  a  fundamental  requirement. 
Notice  not  Jurisdictional  where  Proceedings  are  in  rem. 

§  233.  But  in  states  where  proceedings  for  the  sale  of 
lands  by  administrators  and  executors  are  considered  as  pro- 
ceedings in  rent  the  statute  usually  prescribes  for  the  is- 
suance and  service,  either  personally  or  constructively,  of 
some  notice  or  some  order  to  show  cause  why  the  prayer  of 
the  petition  to  sell  should  net  be  granted.     In  several  of  the 


216  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

states  such  notice  or  admonitory  process  or  order  is  not  a 
jurisdictional  requisite,  and  consequently  there  is  no  obliga- 
tion resting  on  the  purchaser  in  such  case  to  ascertain 
whether  such  notice  of  the  pendency  of  the  petition  has  or 
has  not  been  given. 

The  court  acquires  jurisdiction  of  the  land  involved  by 
virtue  of  the  original  grant  of  administration  over  the  estate 
and  by  the  filing  and  presentation  of  the  petition  for  the 
order  in  due  and  proper  form,  whereupon  the  power  to  order 
the  sale  is  complete.  The  validity  of  the  order  of  sale  mani- 
festly is  never  conditioned  upon  the  facts  of  the  acquisition 
of  jurisdiction  of  the  person  of  the  heir  or  other  interested 
party.  In  theory  of  law  the  land  of  the  decedent  which  is 
sold  to  pay  his  debts  is  charged  with  such  debts  as  an  in- 
cumbrance, and  the  presentation  of  the  petition  for  its  sale 
by  the  fiduciary  calls  into  existence  the  jurisdiction  of  the 
court,  there  are  manifestly  no  adversary  parties  to  the 
proceedings,  the  action  of  the  court  in  such  cases,  like  pro- 
ceedings in  admiralty,  operates  directly  upon  the  res  involved 
in  disregard  of  the  individuals  interested  therein,  the 
world  being  parties,  and  the  estate  by  the  sale  passes  to  the 
purchaser  by  operation  of  law  by  means  of  the  proceedings. 
(Lyne  v.  Sandford,  82  Tex.  58  —  19  S.  W.  Eep.  847;  Apel  v.  Kelsey, 
52  Ark.  341  —  12  S.  W.  Rep.  703;  Kent  v.  Mansel,  101  Ala.  334  —  14 
So.  Rep.  4S9:  Furth  v.  Mortgage  Co.,  13  Wash.  73  —  42  Pac.  Re].. 
Reese  v.  Xoland.  99  Ala.  203  —  13  So.  Rep.  077;  Hyde  v.  Heller,  10 
Wash.  5S6  — 39  Pac.  Rep.  249:  Goodwin  v.  Sims.  86  Ala.  1025  —  5  So. 
Rep.  587;  Ackerson  v.  Orchard,  7  Wash.  377  —  34  Pac.  Rep.  1106; 
Cantelou  v.  Whitley,  85  Ala.  247  —  4  So.  Rep.  610;  Apel  v.  Kelsey,  47 
Ark.  413  —  2  S.  W.  Rep  102;  Sateher  v.  Satcher,  41  Ala.  26  —  91  Am. 
Dec.  498;  Lynch  v.  Baxter,  4  Tex.  431  —  51  Am.  Dec.  735:  McPherson 
v.  Cunliff,  11  S.  &  R.  422  —  14  Am.  Dec.  642;  May  v.  Marks,  74  Ala.  249; 
Rogers  v.  Wilson.  13  Ark.  507:  Herriman  v.  Janney,  31  La.  Ann.  276; 
Bennett  v.  Owen.  13  Ark.  177;  Oriol  v.  Herndon.  3S  La.  Ann.  759; 
Beauregard  v.  New  Orleans,  is  How.  497:  Heath  v.  Layne,  62  Tex.  686; 
Gager   v.    Henry,    5   Sawyer.   237. 

In  Arkansas  where  the  statute  provides  that  notice  of  the 
iency  of  the  petition  for  a  license  to  sell  must  be  given, 
the  absence  of  such  notice  is  regarded  as  merely  an  irregu- 
larity, the  supreme  court  of  that  state  in  a  Into  ease  said: 
"When  an  administrator  desires  to  sell  land,  he  is  required 
to  give  notice  by  publication    of   his    intended  application. 


NOTICE    OF    PENDENCY    OF   APPLICATION    FOR    ORDER.      217 

This  is  to  enable  persons  interested  to  make  themselves  par- 
ties, contest  the  application,  if  they  see  proper,  and  appeal 
from  the  order,  if  adverse  to  them.  Yet,  it  is  held,  that 
failure  to  give  such  notice  is  but  an  irregularity  in  the  exer- 
cise of  jurisdiction,  and  is  cured  by  confirmation  ". 
(Apel  v.  Kelsey,  52  Ark.  341  —  12  S.  W.  Rep.  703.) 

Notice  not  Essential  where  Guardians'  Sales  are  in  rem. 

§  234.  As  in  sales  by  administrators  and  executors  so  in 
sales  by  guardians,  there  are  two  diametrically  opposite  posi- 
tions maintained  by  the  courts.  Pursuant  to  a  decided  pre- 
ponderance of  the  authorities  proceedings  of  sale  by  a  guar- 
dian of  a  ward's  lands  are  not  adverse  to  the  ward,  but  are 
in  the  nature  of  proceedings  in  rem  carried  on  by  and  for 
the  benefit  of  the  ward,  through  the  instrumentality  of  the 
guardian,  of  which  proceedings  the  ward  needs  to  have  no 
notice. 

The  guardian  representing  the  ward,  the  latter  is 
brought  in  by  the  filing  of  the  petition  by  the  former,  which 
confers  jurisdiction  upon  the  court  to  make  the  order  of  sale. 
In  contemplation  of  law  the  ward  is  the  petitioner,  and 
hence  notice  of  its  pendency  and  presentation  is  obviously 
unnecessary,  and  if  required  by  statute  it  is  intended  not  for 
the  ward's  protection,  but  for  the  protection  of  third  parties 
whose  interests  may  be  affected  by  the  proceedings.  As  to 
the  ward  its  absence,  on  principle,  can  not  impair  the  validity 
of  the  sale.  On  the  other  hand  there  is  a  minority  of  de- 
cisions maintaining  that  such  proceedings,  under  the  peculiar 
provisions  of  statute,  are  considered  adversary'  to  the  extent 
of  the  statutory  requirements.  The  former  doctrine  to  the 
effect  that,  they  are  proceedings  in  rem  is  more  consonant 
with  reason,  sound  on  principle  and  in  accordance  with  the 
vast  weight  of  judicial  authority. 

(Meyers  v.  McGavock,  39  Neb.  843  —  5S  N.  W.  Rep.  522;  Doughtry 
v.  Thweatt,  105  Ala.  615  —  16  So.  Rep.  920; 'Scarf  v.  Aldrich.  97  Cal. 
360  —  32  Pac.  Rep.  324;  Thaw  v.  Ritchie,  136  U.  S.  519  —  10  Sup.  Ct. 
Rep.  1037;  Mohr  v.  Porter.  51  Wis.  487  —  8  'N.  W.  Rep.  364;  Smith 
v.  Race,  27  111'.  387  —  81  Am.  Dec.  235;  Gibson  v.  Roll.  27  111.  SS  —  81 
Am.  Dec.  219;  Reid  v.  Morton.  119  111.  US  — 6  N.  E.  Rep.  414;  Camp- 
bell v.  Harmon,  43  111.  18;  Spring  v.  Kane.  86  111.  580;  Thompson  v. 
Tolmie.  2  Pet.  157;  Mulford  v.  Beveridge,  78  111.  455;  McNitt  v.  Turner, 
16  Wall.  352;   Grignon  v.  Astor,  2  How.  319.) 


218  VOID    JUDICIAL    AXD    EXECUTIOX    SALES. 


NOTICE  OF  THE  PENDENCY  OE  THE  APPLICA- 
TION FOE  AN  ORDER  OR  LICENSE  OF  SALE 
CONSIDERED  A  JURISDICTIONAL    REQUIRE- 
MENT 
If  Sale  by  Administrator  is  Considered  Adversary  Notice  Es- 
sential. 
§  235.  While  there  are  several  states  wherein  the  doctrine 
is  promulgated  that  sales  in  probate  by  administrators  and 
executors  to  pay  debts  of  the  decedent  are  proceedings  in  rem 
and  notice  is  not  an  essential  requirement,  the  rule  that  ob- 
tains in  a  majority  of  states,  and  the  decided  preponderance 
of  judicial  authority  is  not  in  harmony  therewith.     Pursuant 
to  the  declarations  of  this  preponderance  of  decisions  the  in- 
auguration of  the  proceedings  for  the  purpose  of  obtaining 
a  license  for  the  sale  of  real  estate  of  the  decedent  by  the 
fiduciary,  is  a  distinct  and  independent  adversary  proceeding 
partaking  of  the  nature  of  an  original  proceeding   in   prr- 
sonam,  wherein  the  fiduciary  as  petitioner  assumes  the  posi- 
tion of  plaintiff  and  the  heirs  whose  interests  are  sought  to 
be  subjected,  are  the  defendants.     The  admonitory  order  to 
show  cause  or  the  notice  in  case  it  is  a  notice,  whether  served 
personally  or  published,  is  in  the  nature  of  original  process 
by  which  the  interested  heirs  are  brought  before  the  court. 
Manifestly,  where  this  doctrine  prevails,  such  defendants  are 
not  in  court  until  such  notice  or  order  to  show  cause  is  served 
as  by  law  required,  unless  in  case  of  express  waiver  by  one 
competent  to  do  so. 

Accordingly,  that  a  sale  of  land  by  an  administrator  upon 
his  petition  is  not  a  proceeding  in  rem,  but  adversary,  and 
further,  that  a  failure  to  give  the  prescribed  notice  of  the 
pendency  of  such  petition  substantially  as  prescribed  by  stat- 
ute vitiates  the  entire  proceedings  of  sale,  upon  jurisdictional 
grounds,  as  against  the  heir  not  notified,  is  the  rule  an- 
nounced in  a  majority  of  states  and  by  the  weight  of  au- 
thority. 

(Perry  v.  Adams,  98  N.  C.  167  —  3  S.  E.  Eep.  729;  Cunningham  v. 
Anderson.  107  Mo.  371  —  17  S.  W.  Rep.  972;  Harrison  v.  Harrison.  106 
N-  c.  2«2  — 11  S.  E.  Rep.  356;  Ilulchinson  v.  Shelly,  133  Mo.  400  —  34 
S.  W.  Eep.  838;  Johnson  v.  Cobb,  29  B.  C.  372  —  7  S.  E.  Rep.  601;  Rail- 


NOTICE    OF    PENDENCY    OF   APPLICATION    FOR    ORDER. 

way  Co.  v.  Cook,  43  Kan.  83  —  22  Pac.  Rep.  988;  Fisher  v.  Siekman,  125 
Mo.  165  —  28  S.  W.  Rep.  435;  Hogle  v.  Hogle,  49  Hun,  313  —  2  N.  Y. 
Supp.  172;  Clark  v.  Thompson,  47  111.  25  —  95  Am.  Dec.  457;  Bloom  v. 
Burdiek,  1  Hill,  130  —  37  Am.  Dec.  299;  Valle  v.  Fleming,  19  Mo.  454  — 
61  Am.  Dec.  566;  Vick  v.  Mayor,  1  How.  379  —  31  Am.  Dec.  109;  Doe 
V.  Bowen,  8  Ind.  197  —  05  Am.  Dec.  758;  Gibbs  V.  Shaw,  17  Wis.  197  — 
84  Am.  Dec.  737;  French  v.  Hoyt,  6  X.  H.  370  —  25  Am.  Dec.  464;  Root 
v.  McFerrin,  37  Miss.  17  —  75  Am.  Dec.  49;  Mickel  v.  Hicks,  19  Kan. 
578  —  27  Am.  Rep.  101;  Clark  v.  Hillis,  134  Ind.  421  —  34  N,  E.  Rep. 
13;  O'Dell  v.  Rogers,  44  Wis.  172;  Frazier  v.  Pankey,  1  Swan.  71: 
gett  v.  Hitt,  29  Wis.  170;  Fisk  v.  Kellogg,  3  Ore.  503;  Corwin  v.  Merritt, 
3  Barb.  341;  Hawkins  v.  Hawkins,  28  Ind.  00;  Rankin  v.  Miller.  4:; 
Iowa,  11;  Wheatley's  Lessees  v.  Harvey,  1  Swan,  4S4;  Jos] in  v.  Caughlin, 
20  Miss.  134;  Schneider  v.  McFarland,  2  N.  Y.  459;  Winston  v.  McLendon, 
43  Miss.  254.) 

In  a  recent  case  in  Connecticut  the  court  held  that  an  order 
of  sale  granted  to  an  administrator  by  the  court  in  the  ab- 
sence of  notice  is  coram  non  jud'iee  and  void,  and  therefore 
the  sale  thereunder  a  mere  nullity  and  subject  to  successful 
collateral  impeachment.  The  court  said:  "  It  is  a  principle 
of  natural  justice  of  universal  obligation,  that  before  the 
right  of  an  individual  can  be  bound  by  judicial  sentence,  he 
shall  have  notice,  either  actual  or  constructive,  of  the  pro- 
ceedings against  him  ". 

(Dorrance  v.  Raynsford,  67  Conn.  1  —  34  Atl.  Rep.  706.) 

Notice  in  Sales  by  Guardians. 

§  236.  In  several  states  guardians'  sales  are  considered 
adversary,  and  notice  to  the  ward  considered  an  indispen- 
sable formality  in  the  acquisition  of  jurisdiction  to  order  the 
sale  of  his  lands.  When  the  statute  has  been  contra  \  ■■ 
in  this  regard  in  procuring  the  order  of  sale,  the  infirmity  has 
been  held  a  fatal  one,  and  the  sale  pronounced  void  because 
the  court  had  no  jurisdiction  to  order  it  in  the  absence  of  juris- 
diction of  the  person  of  the  ward.  These  cases  are  however 
against  the  weight  of  authority  and  unsound  in  principle. 

(In  re  Estate  of  Hunter,  *4  Iowa,  3S8  — 51  N.  W.  Rep.  20;  Kennedy 
v.  Gaines,  51  Miss.  625;  Washburn  v.  Cavmiehael,  32  Towi.  475;  Rule 
v.  Broach,  58  Misa.  552 ;  Good  v.  Norley,  28  Iowa,  188 ,  Lyon  v.  Vanatta, 
35  Iowa.  521  — Williamson  v.  Warren,  55  Miss.  199;  Frazier  v.  Steenrod, 
7  Iowa.  339  —  71  Am.  Dec.  447.) 

Statutes  Must  be  Strictly  Pursued. 

§  237.  Whether  the  proceedings  under  the  statute  inaugu- 
rated by  the  guardian  for  the  sale  of  the  ward's  lands  be  con- 


220  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

siclered  adversary  to  the  interests  of  the  latter  and  therefore 
i)i  personam  or  be  regarded  as  in  rem,  as  a  general  rule,  the 
statute  must  be  strictly  pursued,  as  the  ward  can  not  be  de- 
prived of  his  estate  except  by  due  process  of  law. 

(Leuders  v.  Thomas,  35  Fla.  518  — 17  So.  Rep.  633 ;  Fisher  v.  Siekman, 
125  Mo.  165  —  28  S.  W.  Rep.  435;  Carrigan  v.  Drake.  36  S.  C.  354  —  15 
S.  E.  Rep.  339;  Elwood  v.  Northrup,  106  N.  Y.  172—12  N.  E.  Rep.  590; 
Tracy  v.  Roberts,  88  Me.  310  —  34  Atl.  Rep.  68;  Isert  v.  Davis,  32  S. 
W.  Eep.  294.) 

Acceptance  and  Waiver  of  Service  of  Notice. 

§  238.  Pursuant  to  a  universally  recognized  principle  of 
lav.\  by  virtue  of  his  infancy  a  minor  is  incompetent  to  act 
for  himself;  hence,  as  a  necessary  result,  where  notice  is  an 
essential  requisite  in  the  acquisition  of  jurisdiction  to  make 
a  valid  order  and  sale,  he  can  not  waive  such  notice,  by  rea- 
son of  his  incompetency.  This  proposition  is  so  fundamental 
and  elementary  as  to  preclude  the  necessity  for  the  citation 
of  authority  in  substantiation  thereof.  And  what  is  said  in 
regard  to  a  waiver  of  service  also  applies  with  equal  force  to 
the  acceptance  of  service. 

(Winston  v.  McLendon,  43  Miss.  254;  Whitesides  v.  Barber,  24  S.  C. 
373;  Eicker  v.  Vaughn,  23  S.  C.  187;  Finley  v.  Robertson,  17  S.  C.  435.) 

In  the  absence  of  express  statutory  provision  investing  a 
general  guardian  with  the  power  to  waive  notice,  he  too  is 
not  authorized  to  waive  it  by  appearing  for  the  ward  without 
the  previous  service  of  notice.  The  appearance  of  the  guar- 
dian will  not  cure  the  jurisdictional  defect  by  reason  of  the 
want  of  service  of  notice  on  the  minor. 

(Diekison  v.  Dickison,  124  111.  483  —  16  X.  E.  Eep.  S61 ;  Allsmiller 
v.  Freutehenicht,  86  Ky.  198  —  5  S.  W.  Eep.  746;  (lark  v.  Thompson,  47 
Til.  25  —  95  Am.  Doc.  457;  Helms  v.  Chadbourne,  45  Wis.  60:  Rucker  v. 
Moore,  1  Heisk.  726:  Chambers  v.  Jones,  72  111.  275;  Doe  v.  Anderson, 
5  Ind.  33;  Moore  v.  Stark.  1  Ohio  St.  369.) 

TO  BE  OPEKATTYE  THE  NOTICE  M1TST  BE  GIVEN 
IX  THE  MANNEE  AS  DIRECTED  BY  STATUTE. 

General  Rule  as  to  Defective  Service  and  Non-service. 

..  _':;!>.  As  ;i  general  rule  there  is  a  vast  difference  between 
process  defectively  served  and  jorocess  not  served  at  all,  and 


TO  BE  OPERATIVE  THE  NOTICE  MUST  BE  GIVEN   BY  STATUTE.   221 

this  distinction  is  applicable,  in  a  paeasure  at  least,  to  pro- 
ceedings in  probate  as  veil  as  to  other  judicial  proceedings. 
Thus,  where  the  statute  required  notice  of  the  application  for 
an  order  of  sale  to  be  personally  served  on  a  minor,  service 
upon  him  by  leaving  a  copy  with  his  father,  as  evidenced  by 
the  return,  meets  the  requirements  of  law  to  the  extent  that  it 
is  sufficient  to  confer  jurisdiction  over  the  person  of  the 
minor,  the  service  of  notice  not  being  entirely  wanting,  but 
merely  defectively  served. 

(Bunce  v.  Bunce,  59  Iowa,  533  —  13  N.  W.  Hop.  705.) 

The  general  rule  in  this  regard  applies,  as  we  have  said, 
at  least  to  some  extent  to  probate  proceedings,  and  is  thus 
stated:  If  it  appears  that  there  was  notice,  though  it  be  de- 
fective, or  the  service  thereof  be  imperfect,  neither  in  strict 
compliance  with  the  directions  of  the  statute,  and  the  court 
determine  in  favor  of  the  sufficiency  of  such  notice  or  service, 
which  is  shown  by  the  record,  even  though  such  determina- 
tion was  erroneous,  the  judgment  of  the  court  rendered 
thereon  will  not  be  held  void  in  a  collateral  assault. 

(Roteh  v.  Humbolt  College,  89  Iowa,  480-56  N.  W.  Rep.  658;  Fan- 
nin- v.  Krapp,  68  Iowa,  244-26  N.  W.  Rep.  133;  Gray  v.  Wolf,  77 
Iowa,  630-42  N.  W.  Rep.  504;  Woodbury  V.  Maguire,  42  Iowa,  339; 
Shawhan  v.  Loffer,  24  Iowa,  217.) 

Day  Unauthorized  or  not  Sufficiently  Remote. 

§  240.  Notwithstanding  the  day  for  the  hearing  is  des- 
ignated by  the  court,  the  order  to  show  cause  and  all  sub- 
sequent proceedings  based  thereon  are  void,  when  the  return 
day  in  the  notice  was  upon  a  day  unauthorized  by  statute  m 
such  case,  or  the  return  day  was  not  sufficiently  remote  to 
allow  the  completion  of  the  notice  required  by  law. 

(Lyon  v.  Vanatta,  35  Iowa.  521;  Stilwell  v.  Swartout,  81  N.  Y.  109; 
Haws  v.  Clark,  37  Iowa,  355.) 

It  is  a  general  rule  that  the  notice  must  be  given  sub- 
stantially in  the  manner  prescribed  by  statute,  or  it  is  in- 
operative and  jurisdiction  will  fail  in  consequence  of  a  non- 
compliance with  statutory  requirements  in  this  behalf. 

(Schnell  v.  Chicago.  38  111. '383 -87  Am.  Dec.  447;  Morris  v.  Hogle, 
37  u,  150-87  Am.  Dec.  243;  Gibson  v.  Roll.  27  111.  190-83  Am.  Dec. 
181;  Herdman  v.  Short,  18  111.  59;  Bree  v.  Bree,  51  111.  367.) 


VOID    JUDICIAL    AND    EXECUTION    SALES. 

If  Description  is  Given  it  Must  be  Correct. 

§  241.  So  if  the  notice  purports  to  embrace  a  description 
of  the  land  sought  to  be  sold,  it  must  be  substantially  correct. 
Manifestly  an  order  to  sell  one  piece  of  property  based  upon 
a  notice  which  describes  another  and  a  different  tract  must 
be  void.  Thus,  in  an  early  case  in  Iowa  the  land  was  er- 
roneously described  in  the  notice  in  a  guardian's  sale,  which 
was  held  to  be  equivalent  to  an  entire  want  of  notice,  and 
therefore  an  entire  want  of  jurisdiction  to  grant  the  order  of 
sale,  the  proceedings  in  that  state  being  considered  adversary. 

(Frazier  v.  Steenrod,  7  Iowa,  339  —  71  Am.  Dec.  447.) 

Notice  Given  in  Unauthorized  Manner. 

§  242.  Where  the  statute  directs  that  notice  be  given  by 
personal  service,  unless  publication  thereof  is  ordered  by  the 
court,  it  is  held  that  a  publication,  in  the  absence  of  the 
order  therefor,  is  inoperative  because  unauthorized, 

(Halleck  v.  Moss,  17  Cal.  339.) 

or  if  publication  of  notice  is  ordered  to  be  made  in  a  particu- 
larly designated  newspaper  for  a  specified  number  of  times, 
publication  must  be  completed  in  such  paper,  and  not  divided 
up  between  it  and  some  other  paper. 

(Townsend  v.  Tallant,  33   Cal.  45  —  91  Am.  Dec.  617.) 

If  a  copy  of  the  petition  for  the  order  and  account  are  by 
statute  required  to  be  served,  it  is  held  that  the  service  of  a 
summons  in  their  stead  is  unauthorized  and  consequently 
void. 

(Johnson  v.  Johnson,  30  111.  223.) 

So  where  the  statute  required  service  of  notice,  either 
personal  or  by  publication,  in  proceedings  of  sale  by  ad- 
ministrators, a  judgment  rendered  against  a  minor  upon  an 
acknowledgment  of  service  by  his  general  guardian  was 
decided  to  be  void,  and  the  sale  thereunder  a  nullity. 

(Clark  v.  Thompson,  47  111.  25  —  95  Am.  Dec.  457.) 

By  statute,  service  on  an  infant  is  required  to  be  made  both 
on  the  infant  himself  and  by  delivering  a  copy  to  the  person 
designated  in  the  order  of  the  court,  and  a  failure  to  comply 
with  the  latter,  notwithstanding  the  compliance  with  the 


TO  BE  OPERATIVE  THE   NOTICE   MUST   BE   GIVEN    B1  E.   2  !3 

former  and  the  appointment  of  a  guardian  ad  litem  at  his 
request,  makes  the  proceedings  void. 

(Moulton   v.   Moulton,   4  7    Ihin.    606.) 

And  where  the  statute  requires  service  on  a  minor  to  be 
made  on  him  personally,  as  well  as  on  his  father,  mother  or 
guardian,  a  judgment  rendered  against  him  upon  personal 
service  of  process  upon  him  alone,  has  been  held  void  and 
a  sale  based  upon  such  judgment  can  be  impeached  in  a 
collateral  action. 

(Cox  v.  Story.  80  Ky.  64;  Bellamy  v.  Guhl,  02  How.  Pr.  445;  Helms 
v.  Chadbourne,  45  Wis.  60;  Whitney  v.  Porter,  23  111.  445.) 

The  statutory  mode  of  service  is  regarded  as  imperative; 
the  supreme  court  of  Wisconsin  in  commenting  upon  this 
proposition  in  a  comparatively  late  case  has  said :  "  Another 
principle  is  equally  clear,  and  that  is,  that  when  the  statute 
prescribes  a  particular  mode  of  service  that  mode  must  be 
followed  ". 

(Watertown  v.  Robinson,  69  Wis.  230  —  34  N.  W.  Rep.  139.) 

Accordingly,  where  the  statute  required  service  on  an  in- 
fant under  fourteen  to  be  made  on  the  father,  if  living,  a 
decree  of  sale  of  the  lands  of  such  infant,  where  the  return 
evidences  the  fact  of  service  upon  his  custodian,  but  being 
silent  as  to  whether  this  was  the  father  or  not,  was  decided 
to  be  void. 

(Jenkins  v.  Crofton,  9  S.  W.  Rep.  406.) 

And  the  same  ruling  was  made  in  Mississippi  under  a  stat- 
ute providing  that  upon  the  application  of  a  guardian  to  sell 
lands  notification  shall  be  made  to  at  least  three  of  the  near 
relatives  of  the  minor,  if  such  three  be  in  the  state,  but  this 
provision  was  contravened,  or  the  summons  was  served  upon 
one  only,  the  sale  being  void  in  consequence  of  such 
omissions. 

(Fitzpatrick  v.  Real,  02  Miss.  244;  Stampley  v.  King,  51  Miss.  728; 
Temple  v.  Hommock,   52  Miss.   360.) 

So  in  a  late  case  in  Illinois  plaintiff  instituted  suit  against 
two  infants  averring  that  he  had  furnished  money  to  pay  off 
a  trust  deed  on  their  lands,  and  demanding  to  be  subrogated 
to  the  rights  of  the  trustee,  and  to  be  permitted  to  foreclose. 


224:  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

After  service,  which  was  apparently  regular,  and  an  answer 
by  a  guardian  ad  litem,  the  relief  demanded  was  granted 
and  the  lands  ordered  sold,  plaintiff  becoming  the  purchaser, 
receiving  a  deed  thereto  and  thereafter  sold  the  property  to 
an  innocent  third  party.  Subsequently  ejectment  was 
brought  by  the  infants  to  recover  possession  from  such  third 
party,  and  upon  the  trial  of  which  case  the  return  of  service 
in  the  original  case  was  read  which  disclosed  the  fact  that  a 
copy  of  the  notice  was  left  at  the  usual  place  of  residence  of 
the'defendants,  with  "  Lorenzo  E.  Wolfer  ",  but  the  return 
did  not  show  that  such  person  was  the  plaintiff  in  the  action. 
The  infants  were  permitted  to  show  in  the  ejectment  suit 
that  they  were  stepchildren  of  the  plaintiff  in  the  original 
action  and  resided  with  him,  and  that  the  copy  was  left  with 
him.  Judgment  for  the  possession  was  rendered  in  the  eject- 
ment suit  upon  such  state  of  facts. 

(Hemmer  v.  Wolfer,  124  111.  435  —  11  N.  E.  Rep.  8S5.) 

NOTICE    FOR    THE    PRESCRIBED    LENGTH    OF 
TIME  MUST  BE  GIVEN. 

Provision  of  Statute  as  to  Length  of  Notice  is  Imperative. 

§  24:3.  The  statutory  requirement  for  the  publication  of  a 
notice  for  a  specified  length  of  time  is  imperative,  and  the 
publication  of  a  notice  for  a  time  less  than  that  sanctioned 
by  law  is  a  nullity,  imparting  no  validity  to  a  sale  or  other 
subsequent  proceeding  founded  thereon,  the  defect  being  of 
a  jurisdictional  nature. 

(Townsend  v.  Tallant,  33  Cal.  45  —  91  Am.  Dec.  617;  Convin  v. 
Merritt,  3  Barb.  341;  Monahan  v.  Vandyke,  27  111.  155;  Havens  v.  Sher- 
man, 42  Barb.  636.) 

The  statute  prescribing  the  notice  and  the  duration  of  its 
publication  but  not  extending  the  power  of  the  court  to 
abridge  the  time,  it  is  wholly  immaterial  that  the  notice  was 
shortened  by  the  order  of  the  court  or  not,  it  is  still  void. 

(Havens  v.  Sherman,  42  Barb.  636.) 

In  Hlinois  the  statute  required  the  notice  to  be  published 
for  three  successive  weeks,  the  first  publication  to  be  six 
weeks  before  the  presentation  of  the  petition.     The  notice 


NOTICE  FOR  THE   PEESCHIBED  TIME  MUST   BE  GIVEN.        22o 

published  designated  a  day  upon  which  the  petition  was  to 
be  presented  which  was  less  than  six  weeks  from  the  date  of 
the  first  publication.  The  supreme  court  of  that  state  held 
that  the  notice  was  void,  and  no  validity  could  be  imparted 
to  it  by  the  presentation  of  the  petition  at  a  day  subsequent 
to  that  designated  in  the  notice  and  which  would  be  six  weeks 
after  the  first  publication. 

(Gibson  v.  Eoll,   30  III.   178  —  83  Am.   Doc.   181.) 

So  where  the  order  of  sale  was  originally  granted  without 
notice,  for  which  reason  it  was  void,  no  subsequent  notice  of 
sale,  report  of  sale,  or  confirmation  thereof  by  the  court  can 
have  any  effect  upon  the  proceedings,  the  infirmity  being 
jurisdictional,  exposing  the  sale  to  collateral  attack. 
(Hutchinson  v.  Shelly.  133  Mo.  400  —  34  S.  W.  Eep.  838.) 

And  for  similar  and  self-evident  reasons  where  no  notice  to 
the  heirs  was  given  and  no  petition  was  exhibited  whereon 
to  found  the  order  of  sale,  the  proceedings  of  sale  are  uncom- 
promisingly void. 

(Picard  v.  Montross,  17  So.  Rep.  375.) 

Originally  the  order  directing  an  administrator  to  sell 
lands  of  the  decedent  was  properly  granted  after  due  notice, 
but  no  sale  was  consummated  thereunder,  and  two  years 
thereafter  without  any  previous  notice  or  other  petition,  an- 
other order  was  made  embracing  different  provisions  as  to 
price  and  manner  of  sale,  and  a  sale  was  made  under  this 
second  order  pursuant  to  the  terms  therein  as  to  price,  but 
according  to  the  first  order  in  manner  of  making  the  sale. 
Confirmation  was  duly  entered.  The  second  order  was  held 
void,  and  the  sale  made  in  pursuance  of  a  void  judgment 
must  of  necessity  itself  be  also  void. 
(Bethel   v.   Bethel,  6  Bush,  G5.) 

On  principle  it  would  seem  that  notice  extended  to  a  per- 
son acting  in  one  capacity  should  not  bind  him  in  his  rights 
in  a  different  capacity.  Accordingly,  it  is  held  in  Indiana 
that  consent  given  by  a  woman  as  guardian  of  minors  will 
not  prejudice  her  claim  as  the  widow  of  the  decedent. 

(Helms  v.   Love,  41   Ind.  210.) 

15 


226  VOID    JUDICIAL    AXD    EXECUTION    SALES. 


THE  ORDER  OR  LICENSE  OF  SALE  AND  ITS  CON- 
CLUSIVENESS AS  AN  ADJUDICATION. 

Order  Must  not  Go  Beyond  the  Petition. 

§  244.  The  order  or  license  of  sale  is  the  judgment  under 
which  the  sale  is  made.  The  authority  of  the  court  to  act  in 
the  premises  is  invoked  by  the  petition  praying  for  the  order. 
.Manifestly,  the  prayer  of  the  petition  must  not  exceed  the 
scope  of  the  averments  of  the  same,  and  by  analogy,  the 
petition  being  the  foundation  whereon  the  order  is  founded, 
the  latter  must  not  be  broader  in  latitude  than  the  former, 
or  else  it  adjudicates  matters  not  in  issue. 

(Wilson  v.  Holt,  83  Ala.  528  —  3  So.  Rep.  321;  Pryor  v.  Downey,  50 
Cal.   38S  — 19   Am.    Rep.    656.) 

Accordingly,  no  more  land  should  be  ordered  sold  than  is 
brought  within  the  jurisdiction  of  the  court  by  means  of  the 
petition,  the  sale  of  such  not  subjected  to  the  jurisdiction  of 
the  court  is  void. 

(Verry  v.  McClellan,  6  Gray,  535  —  66  Am.  Dec.  423:  Townsend  v. 
Cordon,  19  Cal.  188.) 

And  the  assignment  of  dower  upon  the  report  of  a  commis- 
sioner appointed  by  the  court,  including  a  tract  not  described 
in  the  petition,  is  a  void  act. 

(Falls  v.  Wright,  55  Ark.  562  —  18  S.  W.  Rep.  1044.) 

Only  the  Land  Embraced  in  the  Order  can  be  Sold. 

§  245.  The  order  of  sale  being  in  the  nature  of  a  judgment 
directing  the  sale  of  certain  specified  lands,  the  sale  of  a 
tract  not  embraced  therein  is  void  upon  jurisdictional 
grounds. 

i. Melton  V.    Fitch,    125  Mo.   281  —  28   S.   W.    Rep.    612.) 

The  order  of  sale  is  the  officer's  authority  to  make  the  sale, 
and  as  the  fiduciary  has  no  authority  over  the  real  estate  of 
an  intestate  except  to  sell  it  in  pursuance  of  an  order  from 
the  court  lawfully  issued,  it  is  manifest  that  a  sale  made  by 
the  fiduciary  without  having  first  obtained  a  license  therefor, 
or  if  obtained  and  the  same  is  void,  is  without  warrant  in 
law  and  wholly  destitute  of  legal  support.  It  is  unauthorized 
and  void  to  the  extent  that  it  can  neither  be  ratified  by  lapse 


TIIE  OKDEE  OR  LICENSE  OF   SALE  AND   ITS  CONCLUSIVENESS.   227 

of  time  nor  by  the  act  of  the  parties,  nor  can  it  be  validated 
by  confirmation  of  the  court. 

(Cunningham  v.  Anderson,  107  .Mo.  371  —  17  S.  W.  Rep.  972;  Dawson 
v.  Helmes,  30  Minn.  107  —  14  N.  W.  Rep.  462;  Johns  v.  Tiers,  114  Pa. 
St.  611  —  7  Atl.  Rep.  923;  Cummings  v.  Simpson,  1  S.  E.  Rep.  657;  Broad- 
water v.  Richards,  4  Mont,  so  —  2  Pac.  Rep.  544;  Goforth  v.  Langworthy, 
4  Ohio,  129  —  19  Am.  Dec.  588;  Gelstrop  v.  Moore,  26  Miss.  206  —  59 
Am.  Dec.  254;  Walbridge  V.  Day,  31  111.  379  —  83  Am.  Dec.  227;  Evans 
v.  Snyder,  64  Mo.  516;  Wells  v.  Chaffin,  60  Ga.  677.) 

Notwithstanding  the  existence  of  an  order  of  sale,  if  the 
description  of  the  land  embraced  therein  is  so  indefinite  and 
uncertain  as  to  be  void  for  uncertainty,  or  if  other  lands  are 
sold  than  those  described  in  the  petition,  the  sale  is  a  nullity, 
passing  no  title  and  subject  to  collateral  attack. 

(Blackwell  v.  Townsend,  91  Ky.  609  —  16  S.  W.   Rep.   587.) 

As  the  order  of  sale  by  the  court  is  the  judicial  authority  of 
the  fiduciary  to  sell  the  land,  it  is  simultaneously  also  a  limi- 
tation upon  his  powers  precluding  a  sale  of  that  not  therein 
lawfully  authorized. 

(Kingsbury  v.  Love,  95  Ga.  543  —  22  S.  E.  Rep.  617.) 

In  Alabama  it  is  held  in  a  late  case  that  any  order  of  sale 
made  by  the  court  directing  the  sale  of  lands  of  a  decedent  is 
void  for  want  of  jurisdiction  if  the  will  of  the  decedent  con- 
fers the  power  to  sell  upon  his  executor. 

(Wilson  v.    Holt,    83   Ala.    528  —  3    So.    Rep.    321.) 

Though  it  is  held  in  California  that  under  a  will  devising 
property  to  the  executor  therein  named  in  trust,  but  not  ex- 
pressly authorizing  any  sale  of  the  realty  otherwise  than  by 
a  direction  to  pay  the  debts  of  the  testator,  a  sale  and  con- 
veyance by  such  executor  in  the  absence  of  an  order  of  the 
court  to  that  effect  is  void  and  passes  no  title  to  the  pur- 
chaser. 

f  II  use  v.  Den.  85  Cal.  390  —  24  Pac.  Rep.  790.) 

Order  to  Sell  upon  Petition  to  Mortgage. 

§  246.  In  .Michigan  an  order  to  mortgage  was  granted 
upon  an  administrator's  petition  to  sell,  and  a  continuance 
ordered  for  a  specified  time,  whereupon  an  order  to  sell  was 
made  without  a  new  notice,  because  it  was  found  that  it  was 
impracticable  to  mortgage ;  the  sale  was  decided  invulnerable 


228  VOID    JUDICIAL    AND    EXECUTION    SALES. 

upon  collateral  attack  upon  the  ground  that  the  evidence  for 
the  one  order  was  essentially  similar  to  that  required  for  the 
other. 

(Cahill  v.  Bassett,  66  Mich.  407  —  33  N.  W.  Rep.   722.) 

But  in  Iowa  and  Indiana  a  diametrically  opposite  con- 
clusion was  reached  by  the  court,  where  an  order  to  mortgage 
made  upon  a  guardian's  petition  to  sell,  was  held  void  for  want 
of  jurisdiction. 

(Edwards  v.  Baker,  145  Ind.  281  —  44  N.  W.  Rep.  467;  McMannis  v. 
Rice,  48  Iowa,  361.) 

Order  of  Sale  to  Pay  Debts  Barred  by  Statute  of  Limitations. 

§  247.  In  Pennsylvania,  Massachusetts  and  Michigan  the 
rule  obtains  that  an  order  of  sale  directing  an  administrator 
to  sell  lands  of  the  estate  to  pay  debts  of  the  decedent  barred 
by  the  statute  of  limitations,  is  void,  and  the  purchaser  re- 
ceives no  title  at  a  sale  thereunder,  because  the  court  had  no 
jurisdiction  to  order  the  sale  upon  barred  claims,  they  having 
ceased  to  be  a  charge  upon  the  land. 

(Smith  v.  Wildman,  178  Pa.  St.  245  —  35  Atl.  Rep.  1047:  Campmi  v. 
Gillett.  1  Mich.  416—53  Am.  Dec.  73;  Heath  v.  Wells,  5  Pick.  139  — 
16  Am.  Dec.  383;  Palmer  v.  Oakley.  2  Doug.  433  —  47  Am.  Dee.  41; 
Tarbell  v.  Parker,  106  Mass.  347;  Thompson  v.  Brown,  16  Mass.  172.) 

These  cases  are  justifiable  perhaps,  where  the  real  estate 
comes  within  the  control  of  the  fiduciary,  or  of  the  court, 
only  in  case  there  are  debts,  which  can  not  be  when  there  are 
none,  or  only  such  as  are  barred  by  the  statute  of  limitations. 
On  principle  they  are  manifestly  wrong,  unless  based  upon 
express  mandatory  provisions  of  statute. 

In  New  York  it  is  held  that  a  claim  barred  by  the  statute 
of  limitations  is  in  contemplation  of  law  no  debt  at  all,  and  a 
sale  of  land  by  an  executor  under  a  power  in  the  will  to 
pay  such,  is  void,  the  fiduciary  being  bound  to  plead  the  statute 
in  such  case. 

(Butler  v.  Johnson,   111  N.  Y.  204  —  18  N.  E.  Rep.  643.) 

And  if  the  sale  were  by  the  court  and  not  under  a  power  in 
the  will,  it  seems  that  the  same  reasoning  would  apply,  the 
statute  being  principally  intended  for  the  protection  and 
benefit  of  the  heirs. 

In  several  states  a  different  rule  prevails,   where  sales 


THE  OKDEB  OE   LICENSE  OF  SALE   AXD  ITS  CONCLUSIVENESS.  229 

based  upon  claims  against  an  estate  to  which  the  statute  of 
limitations  might  be  successfully  pleaded,  are  not  considered 
void. 

(Postlewaite  v.  Ghiselin,  97  Mo.  420  —  10  S.  W.  Bep.  482;  Deans  v. 
Wilcoxen,  25  Fla,  980  —  7  So.  Rep.  163;  Giddinps  v.  Steele,  2S  Tex.  733  — 
91  Am.  Dee.  336;  Hall  v.  Woodman,  49  N.  H.  295.) 

There  is  a  conflict  of  authority  as  to  the  effect  of  a  sale  by 
an  administrator  to  pay  debts  when  in  fact  there  are  none. 
Pursuant  to  the  weight  of  authority  the  order  and  sale  are 
not  pronounced  void  when  questioned  in  a  collateral  pro- 
ceeding. 

(Deyton  v.  Cell,  SI  Ga.  370  —  8  S.  E.  Rep.  620;  Cnrran  v.  Kuby,  37 
Minn.  330  —  33  N.  W.  Rep.  907;  Murphy  v.  De  France,  105  Mo.  53  —  15 
S.  W.  Rep.  949  —  Succession  of  Theze,  44  La.  Ann.  46  —  10  So.  Rep.  412; 
Merrill  v.  Harris,  26  N.  H.  142  —  57  Am.  Dec.  359;  McNally  v.  Haynes, 
59  Tex.  583;  Bowen  v.  Bond,  80  111.  351.) 

Description  of  Property  in  the  Order. 

§  248.  The  form  and  contents  of  the  order  or  license  dif- 
fers in  different  states,  in  some  it  must  describe  the  land  to 
be  sold  and  the  terms  of  sale,  while  in  others  it  need  not 
designate  which  part  of  the  testator's  lands  are  to  be  sold. 
Thus  it  is  held  in  Arkansas  that  the  fact  that  the  order  con- 
tains no  description  will  not  render  the  sale  inoperative, 
when  it  appears  to  have  been  granted  on  a  certain  petition 
which  itself  embraces  a  sufficient  description. 

(Montgomery  v.  Johnson,  31  Ark.  74.) 

And  in  Georgia  a  sale  was  sustained  where  the  order  was  for 
the  sale  of  all  the  real  estate  of  the  decedent  without  any 
further  attempt  at  description  in  particular. 

jDoe  v.  Henderson,  4  Ga.  148  —  48  Am.   Dec.   216.) 

The  Texas  statute  provides  that  the  order  of  sale  contain 
a  description  of  the  land  to  be  sold,  but  the  courts  of  that 
state  have  held  that  this  provision  is  directory  merely,  and 
therefore  the  omission  of  such  description  is  an  irregularity 
only  which  will  not  expose  the  sale  to  collateral  impeachment. 

(Robertson    v.    Johnson,    57    Tex.    62.) 

And  in  Massachusetts  the  order  need  not  describe  which 
part  of  the  lands  of  the  estate  are  to  be  sold. 

(Yeomans  v.  Brown,  8  Met.  51;  Norton  v.  Norton,  5  Cush.  524.) 


230  VOID    JUDICIAL    AND    EXECUTION    SALES. 

As  a  general  rule  that  must  be  regarded  as  certain  which 
is  capable  of  being  made  so.  Hence,  if  the  order  embraces 
sufficient,  either  in  itself,  or  by  reference  to  maps,  papers, 
plats,  or  other  public  records,  to  furnish  the  means  of  iden- 
tification, it  is  not  void,  for  the  office  of  a  description  is  not 
to  identify  the  property,  but  rather  to  furnish  the  means  of 
identification. 

(Thain  v.  Rudisill,  126  Ind.  272  —  26  X.  E.  Rep.  46.) 

But  where  the  number  of  the  lot  and  block  was  given  with- 
out designating  in  what  city  or  village  these  were  located  it 
is  insufficient,  because  void  for  indefiniteness. 

(Herrick  v.  Ammennann.  32  Minn.  544  —  21  X.  W.  Rep.  836.) 

Though  it  was  held  that  where  a  certain  number  of  acres 
were  mentioned  out  of  a  certain  corner  of  a  designated  tract, 
where  the  decedent  owned  no  more  than  that  number  of  acres, 
this  was  considered  a  sufficient  description. 

(Bloom  v.    Burdick,    1   Hill.    130  —  37   Am.    Dec.    299.) 

Statute  Authorizing  a  Sale  does  not  Include  Exchange  or 
Mortgage. 
§  249.  If  the  statute  authorizes  a  guardian  upon  the  order 
of  the  court,  to  sell  real  estate  of  the  ward  for  the  purpose 
of  investing  the  proceeds  in  other  lands,  the  petition  of  a 
guardian  praying  for  an  order  to  exchange  the  ward's  lands 
for  other  lands  designated,  the  order  made  in  pursuance  of 
such  petition  permitting  an  exchange,  are  absolutely  void  for 
the  reason  that  the  provision  of  statute  to  sell  can  not  be 
interpreted  to  mean  exchange. 

(Meyer  v.   Bosseau.   47  Ark.   460  —  2  S.   W.    Rep.    112.) 

Upon  similar  principles  it  is  held  that  where  the  statute 
authorizes  the  court  by  its  order  to  direct  the  administrator 
to  sell  the  real  estate  of  a  decedent,  an  order  directing  him 
to  mortgage  it  is  void. 

(Black    v.    Dressell,    20    Kan.    153.) 

So  in  an  early  ease  in  the  federal  supreme  court  it  was 
held  that  the  word  "  sale  "  did  not  mean  the  transfer  of  the 
land  to  a  creditor  in  payment  of  his  debt  against  the  estate, 
but  infant  a  transfer  for  cash  under  the  formalities  of  a  sale 
under  the  order  of  the  court. 

(Williamson    v.    Berry,'  8    How.    495.) 


THE   ORDER  OR   LICENSE  OF   SALE   AND    ITS   CONCLUSIVENESS.   231 

Sale  of  a  Part  Interest  Only  or  of  Interest  Subject  to  Incum- 
brance. 

§  250.  Tinier  a  statute  authorizing  the  probate  court  to 
order  the  sale  of  the  whole  or  any  part  of  the  real  estate  of 
the  decedent  to  pay  debts,  as  may  be  considered  necessary 
by  the  court,  a  petition  and  order  for  the  sale  of  an  undivided 
half  to  pay  the  share  of  three  of  the  six  heirs  who  had  paid 
their  share  of  the  debts  was  held  void  in  a  collateral  proceed- 
ing, because  a  sale  of  a  less  than  the  entire  interest  in  a  par- 
ticular tract  owned  by  the  decedent  is  unauthorized  by  the 
statute. 

(Eberstein  v.   Oswalt,    47   Mich.    254—10    N.   W.    Rep.    3G0.) 

And  for  similar  reasons  a  sale  by  an  administrator  under  the 
order  of  the  court  made  subject  to  a  mortgage  placed  upon 
the  land  by  one  of  the  heirs  upon  his  interest,  was  decided 
to  be  nugatory. 

(Hewitt  v.  Durant,   78  Mich.   186  —  44  N.   W.   Rep.   318.) 

Order  of  Sale  is  Conclusive  if  Court  had  Jurisdiction. 

§  251.  Jurisdiction  having  been  properly  acquired,  the 
order  or  license  for  the  sale  of  land,  so  long  as  it  stands  with- 
out being  vacated  or  reversed,  is  conclusive  upon  all  parties 
who  may  be  interested  in  the  property  involved  and  who  were 
parties  to  the  proceedings.  It  can  not  be  assailed  in  a  col- 
lateral action  for  any  error  which  the  court  may  have  made, 
or  for  fraud  or  irregularity,  provided  however,  that  the  court 
acquired  jurisdiction  to  grant  the  order  or  license  of  sale. 

The  same  rule  of  law  applies  to  such  order  as  is  applicable 
to  ordinary  judgments  in  actions  at  law  or  decrees  in  suir>  in 
equity.  And  the  adjudications  of  probate  courts  in  granting 
orders  or  licenses  of  sale  are  as  important  as  those  of  courts 
of  a  more  general  jurisdiction,  and  the  determination  upon 
the  issues  presented  equally  as  conclusive. 

(Hodge  v.  Fabian,  :;i  S.  C.  212  —  9  S.  E.  Rep.  820;  Wall  v.  Wall.  123 
Pa.  St.  545  —  16  All.  Rep.  59s  ;  Eutton  v.  Laws,  55  towa,  710  -8  X.  W. 
Rep.  G42;  Withers  v.  Patterson,  M7  Tex.  491  —86  Am.  Dec.  643;  Johnson 
v.  Beazley,  65  Mo.  250  —  27  Am.  Rep.  276;  Cecil  v.  Cecil.  19  Md.  72  — 
81  Am.  Dec.  626;  Rudy  v.  Uii.li.  69  Pa.  St.  L77  — 8  Am.  Rep.  238; 
Merrill  v.  Earris,  26  N.  H.  142  —  57  Am.  Dec.  359;  McDade  v.  Burch, 
7  Ga.  559  —  50  Am.  Dec.  497:  Bailey  v.  Dilworth,  10  S.  &  M.  404  —  48 
Am.   Dec.  760;  Wyman  v.  Campbell,   6    Port.  219  —  31    Am.    Dec.   677; 


232  VOID    JUDICIAL    AND    EXECUTION    SALES. 

Roach  v.  Martin,  1  Hair.  54S  —  28  Am.  Dec.  746 ;  State  v.  McGlynn,  20 
Cal.  233  —  81  Am.  Dec.  118;  Cummings  v.  Cummings,  123  Mass.  270; 
Hood's  Estate,  90  X.  Y.  512;   Johns  v.  Hodges,   62  Md.  525.) 

Hence  the  order  is  an  adjudication  of  every  fact  essential  to 
the  validity  of  the  same. 

(English  v.  Woodman,  40  Kan.  752  —  21  Pac.  Rep.  283;  McGregor  v. 
Morrow,   40  Kan.   730  —  21  Pac.   Rep.   157.) 

The  order  of  sale  is  then  an  adjudication  of  a  final  nature, 
and  in  order  to  maintain  his  title  under  a  sale  made  in  pur- 
suance thereof,  the  purchaser  need  not  again  establish  the 
farts  necessarily  found  by  the  court  before  making  the  order, 
nor  need  he  seek  to  justify  the  legal  conclusions  found  by  the 
court  from  the  facts  produced.  All  errors  or  irregularities 
must  be  corrected  on  appeal,  or  by  motion  or  some  other  re- 
visory proceeding,  but  in  the  absence  of  the  successful  ap- 
plication of  such  remedies  the  order  is  invulnerable  upon 
an  attempt  at  collateral  impeachment. 

( Pratt  v.  Hotaling,  45  Mich.  457  —  8  X.  W.  Rep.  72 ;  King  v.  Nunn, 
99  Mich.  590  — 5S  X.  W.  Rep.  636;  Macey  v.  Stark,  116  Mo.  481  —  21 
S.  W.  Rep.  1088;  Norman  v.  Olney,  64  Mich.  553  —  31  N.  W.  Rep.  555; 

Myers  v.  Davis,  47  Iowa,  325;  Weyer  v.  Bank.  57  Ind.  19S.) 

Notwithstanding  the  general  rule  of  conclusiveness  ap- 
plicable to  orders  of  sale  there  is  at  least  one  prominent  ex- 
ception to  the  rule,  and  that  is,  if  the  alleged  decedent  is  in 
fart  alive,  the  decree,  order  or  license  of  sale  is  void  for  want 
of  jurisdiction.  The  actual  death  of  the  owner  of  the  estate 
is  a  jurisdictional  fact  which  must  be  true  and  is  not  con- 
clusively adjudicated  by  the  grant  of  administration.  The 
grant  being  merely  prima  facie  evidence  of  the  death  of  such 
owner,  which  will  not,  however,  preclude  the  production  of 
evidence  that  in  fact  the  person  presumed  to  be  dead  is  in 
fact  alive,  and  if  alive  there  is  a  total  want  of  power  to  ad- 
minister over  his  estate  as  that  of  a  decedent,  Therefore, 
it  may  be  shown  in  a  collateral  proceeding  that  the  alleged 
decedent  is  really  living. 

(Scott  v.  McNeal,   154  U.  S.  34  —  14  Sup.  Ct.   Rep.   1108.) 

Decrees  and  orders  of  courts  exercising  probate  jurisdic- 
tion are  dependent  for  their  validity  upon  the  fact  of  juris- 
diction over  the  subject-matter  involved,  and  over  the  parties. 


HEALING  STATUTES  AND  THEIR  EFFECT.  233 

This  is  a  question  of  paramount  consideration,  for  it  is  in 
sales  of  this  kind  as  it  is  in  those  under  executions  upon 
judgments  at  law,  or  under  decrees  in  chancery,  that  the 
proceedings  are  wholly  void  if  jurisdiction  is  wanting,  ac- 
cording to  a  fundamental  principle  of  jurisprudence.  In 
many  of  the  states  statutes  exist  providing  what  shall  be  em- 
braced in  the  order.  These  statutes  differ  materially,  special 
reference  must  be  had  to  the  particular  enactments,  as  it 
would  be  neither  profitable  nor  expedient  to  enumerate  them 
here  or  observe  their  distinctions  and  peculiarities,  but  the 
practitioner  is  directed  to  the  statute  in  force  where  the  pro- 
ceeding is  pending. 

HEALIXG  STATUTES  AND  THEIR  EFFECT. 

General  Provisions  of  These  Statutes. 

§  252.  In  several  of  the  states,  among  them  Wisconsin, 
Michigan,  Minnesota,  Nebraska,  Indiana,  Maine,  Massachu- 
setts and  Washington,  healing  statutes  have  been  enacted  in 
regard  to  sales  by  administrators  and  executors,  and  in 
Oregon  as  to  those  made  by  guardians,  in  which  it  is  provided 
in  substance  that  in  case  of  an  action  relating  to  any  estate 
sold  by  one  of  these  fiduciaries  in  which  the  heir  or  ward,  or 
any  person  claiming  under  him,  shall  contest  the  validity  of 
such  sale,  the  same  shall  not  be  avoided  on  account  of  any 
irregularity  in  the  proceedings  provided  it  shall  appear, 
(a)  that  the  administrator,  executor  or  guardian  was  licensed 
to  make  the  sale  by  the  court  having  jurisdiction,  (b)  that 
the  fiduciary  gave  a  bond  Avhich  was  approved  by  said  court 
before  the  sale,  (c)  that  he  took  the  oath  prescribed  by  law, 
(d)  that  he  gave  the  notice  of  the  time  and  place  of  sale  as 
by  law  required,  and  (e)  that  the  premises  were  sold  accord- 
ingly, and  the  sale  confirmed  by  the  court,  and  that  the  lands 
are  held  by  one  who  purchased  them  in  good  faith. 

(Sec.  3919  Sanb.  &  Berr.  An.  St.  Wis.  1889;  Sec.  6076  How.  St.  Mich. 
1882:  Sec.  4612  St,  Minn.  1894;  Sec.  1178  Cons.  St,  Neb.  1891:  See.  2520 
Burn's  An.  St.  Ind.  1894;  Sec.  6474  Bal.  St.  Wash.  1897;  Sec.  31,  Ch.  71, 
Rev.  St.  Maine,  1883;  Sec.  18,  Ch.  142,  Pub.  St.  Mass.  1882;  Sec.  3132 
Hill's  Code  Ore.   1S92.) 

If  the  sale  has  been  confirmed  it  is  valid  under  these  stat- 
utes, as  to  a  bona  fide  purchaser,  if  there  was  a  legal  license, 


234:  VOID    JUDICIAL    AND    EXECUTION    SALES. 

bond,  oath,  notice  of  sale,  and  sale  pursuant  to  the  notice, 
notwithstanding  the  fact  that  irregularities  in  other  particu- 
lars may  have  intervened.  But  on  the  contrary,  where  one 
or  more  of  the  requirements  of  the  statute  have  not  been  com- 
plied with,  the  sale  and  title  may  be  drawn  in  question  by  an 
heir  or  ward,  or  by  one  holding  under  them,  in  a  collateral 
action.  As  to  the  five  essentials  mentioned  in  the  statute  the 
proceedings  are  adversary  to  the  heir  or  ward,  ami  compli- 
ance therewith  is  imperative  and  mandatory. 

(Hubermann  v.  Evans,  46  Neb.  784  —  65  X.  W.  Rep.  1045;  .Montour 
v.  Purely.  11  Minn.  3S4  —  88  Am.  Dor.  sLs :  Larimer  v.  Wallace,  36  Neb. 
444_54  N.  W.  Hep.  835;  Walker  v.  Goldsmith.  14  Ore.  125  —  12  Pac. 
Pep.  537:  Gager  v.  Henry,  5  Sawyer,  237;  Hobart  v.  Upton,  2  Sawyer, 
302;  Weld  v.  Johnson  Mfg.  Co.,  S4  Wis.  537  —  54  N.  W.  Pep.  335: 
Pumrill  v.  Bank,  28  Minn.  202  —  9  N.  W.  Pep.  731;  Mohr  v.  Porter. 
51  Wis.  487  —  S  X.  W.  Rep.  364;  Curran  v.  Kuby,  37  Minn.  330  —  33 
X.  W.  Pep.  907;  Showers  v.  Robinson,  43  Mich.  509  —  5  X.  W.  Rep. 
988;  Davis  v.  Hudson,  29  Minn.  27  —  11  X.  W.  Pep.  136;  Pratt  v.  Hotal- 
ing,  45  Mich.  459  —  8  X.  W.  Rep.  72;  Land  Co.  v.  Kurtz.  45  Minn.  380  — 
47  X.  W.  Rep.  1134;  Hartley  v.  Croze,  38  Minn.  325  —  51  X.  W.  Rep. 
915;  McGrubb  v.  Bray,  36  Wis.  333;  Ryder  v.  Flanders,  30  Mich.  343; 
Stewart  v.  Bailey,  2S  Mich.  251;  Osman  v.  Traphagen,  23  Mich.  80; 
Jenness  v.   Smith,   58  Mich.   2S0  —  25   X.   W.   Rep.    191.) 

Failure  to  Give  the  Sale  Bond  Required. 

§  253.  As  a  general  rule  great  strictness  is  required  by  the 
courts  in  the  compliance  with  the  several  essentials  enumer- 
ated in  the  statute.  Thus  it  is  held  that  where  the  fiduciary 
failed  to  give  the  bond  as  required  by  law  the  sale  is  void 
and  that  the  nullity  thereof  may  be  successfully  shown  in  a 
collateral  attack. 

(Weld  v.  Johnson  Mfg.  Co.,  84  Wis.  537  —  54  X.  W.  Pep.  335;  Wil- 
liams v.  Morton,  38  Me.  47  —  61  Am.  Dec.  229;  Tracy  v.  Roberts,  88 
Me.  310  —  34  Atl.  Rep.  68;  Williams  v.  Peed,  5  Pick.  480;  Babcock  v. 
Cobb,  11  Minn.  347;   Bachelor  v.  Korb,  78  X.  W.  Rep.  4-5. 

Though  in  Indiana  the  proceedings  of  sale  by  a  guardian 
can  not  be  impeached  in  a  collateral  action  for  a  failure  to 
furnish  such  bond,  while  in  a  direct  proceeding  the  sale  will 
be  held  void  if  no  additional  bond  to  secure  the  proceeds  of 
sale  is  given,  and  the  purchase  money  is  not  accounted  for 
by  the  fiduciary. 

(Marquis  v.  Davis,  113  Ind.  219  —  15  X.  E.  Rep.  251;  Davidson  v. 
Bates,  111  Ind.  391  —  12  X.  E.  Rep.  687;  McKeever  v.  Ball,  71   Ind.  398.) 


HEALING   STATUTES   AND  THEIK   EFFECT.  ~35 

Failure  to  Take  the  Oath  Prescribed. 

§  254.  A  compliance  with  the  requirement  of  statute  as 
to  the  oath  is  imperatively  essential  to  the  validity  of  the 
sale.  Hence  it  has  been  held  that  the  oath  must  be  taken  and 
subscribed  before  fixing  on  the  time  and  place  of  sale  under 
the  license  of  the  court;  and  if  the  oath  is  taken  after  such 
time  though  before  the  sale  is  actually  made  it  is  held  that 
the  notice  of  sale  is  unauthorized  and  extiajudicial,  and  the 
sale  void  in  consequence  thereof. 

(Ryder  v.    Flanders,   30   Mich.    33G.) 

And  in  Nebraska  in  a  late  case  it  is  held  that  the  statute  is 
mandatory  and  exact  compliance  therewith  imperative,  The 
failure  of  a  guardian  licensed  to  sell  the  real  estate  of  his  ward 
to  take  and  subscribe  the  oath  required  by  the  statute  before 
facing  on  the  time  and  place  of  sale,  renders  the  sale,  if  made, 

void. 

(Bachelor  v.  Korb,  78  N.  W.  Rep.  485.) 

And  in  Wisconsin  where  the  time  and  place  was  fixed  be- 
fore the  oath  was  taken,  but  the  sale  was  made  subsequent 
thereto,  the  proceedings  were  decided  invalid,  the  court  say- 
ing: "  The  provision,  however,  is  peremptory,  that  the  oath 
required  shall  be  taken  before  fixing  the  time  and  place  of 
sale.  Can  the  court  say,  in  view. of  language  so  explicit, 
that  the  oath  need  not  be  taken  before  fixing  on  the  time  and 
place  of  sale,  but  may  be  taken  at  any  subsequent  time  \  We 
think  the  court  has  no  right  to  take  such  liberties  with  the 
statute,  and  disregard  a  requirement  so  plainly  expressed, 
even  to  sustain  a  sale  otherwise  regular.  To  do  this  would 
be  to  assume  the  province  of  the  law-making  power  ". 

(Blackman  v.  Baumann,  22  Wis.  613.) 

A  substantial  compliance  with  the  provision  of  the  statute 
in  this  regard  is  required  in  Minnesota,  though  a  total  failure 
to  comply  with  it  may  be  shown  in  a  collateral  action,  because 
the  provision  is  imperative. 

(Hugo  v.  Miller.  50  Minn.  105-52  N.  W.  Rep.  381;  Davis  v.  Hudson, 
29  Minn.  27  —  27  N.  W.  Rep.  136;  Montour  v.  Purdy.  11  Minn.  384  — 
88   Am.   Dec.   88.) 

Failure  to  Give  the  Notice. 

§  255.  The  notice  mentioned  as  one  of  the  five  essentials 
is  as  necessary  to  a  valid  sale  under  these  statutes  as  any  one 


236  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

of  the  other  requirements,  and  must  be  given  in  compliance 
with  the  statute  or  else  the  sale  is  void.  Thus  the  sale  was 
held  void  and  no  title  was  passed  thereby,  where  the  notice 
merely  named  the  town  and  county  in  which  it  was  to  be 
made,  as  this  was  not  a  compliance  with  the  requirement  of 
the  statute  in  stating  the  time  and  "  place  "  of  the  sale. 
(Hartley  v.  Croze,  38  Minn.  375  —  51  N.  W.  Rep.  015.) 

The  statute  requiring  the  notice  of  sale  to  be  published 
"  for  three  weeks,  successively,  next  before  such  sale  ",  a  pub- 
lication "  for  three  successive  weeks  previous  ",  to  the  sale 
is  insufficient  to  support  the  sale,  and  the  land  may  be  re- 
covered from  the  purchaser  in  a  collateral  action  of  eject- 
ment. 

(Montour   v.    Purdy,    11   Minn.    278  —  88   Am.   Dec.    88.) 

The  decisions  of  courts  in  the  other  states  having  statutes  of 
a  similar  nature  are  substantially  to  the  same  effect,  the  want 
of  the  notice  avoiding  the  sale,  though  a  defective  notice,  on 
general  principles  will  not  be  fatal. 

(McGrubb  v.  Bary,  36  Wis.  333;  Tracy  v.  Roberts,  88  Me.  310  —  34 
Atl.  Rep.  68;  Nott  v.  Sampson  Mfg.  Co.,  142  Mass.  479  —  8  N.  E.  Rep. 
406.) 

In  Minnesota  it  is  held  that  if  the  license  is  granted  by 
the  proper  court  to  the  fiduciary  it  is  wholly  immaterial  so 
far  as  the  validity  of  the  sale  is  concerned  that  it  is  or  is  not 
founded  upon  a  proper  petition  therefor, 

(Rnmrill  v.  Bank,  28  Minn.  202  —  9  N.  W.  Rep.  731.) 

while  in  Wisconsin  it  is  held  that  a  valid  petition  is  essential 
to  call  the  jurisdiction  of  the  court  into  existence. 
(Schafer  v.  Luke,  51  Wis.  669  —  8  N.  W.  Rep.  857.) 

The  Sale  Must  be  Confirmed. 

§  256.  Confirmation  being  one  of  the  five  essentials  re- 
quired by  the  statute  no  valid  sale  and  conveyance  can  be 
made  unless  the  sale  is  reported  back  to  the  court  and  in- 
dorsed by  it  by  virtue  of  the  order  of  confirmation. 

(Jannes  v.  Pmith,  58  Mich.  280  —  25  N.  W.  Rep.  191;  Larimer  v. 
Wallace,  36  Neb.  444  —  54  N.  W.  Rep.  835.) 

In  Minnesota  it  is  held  that  the  confirmation  is  sufficient 
in  time  if  made  after  the  execution  of  the  guardian's  deed  to 
the  land  sold. 

(Dawson  v.  Helmes,  30  Minn.  107  —  14  N.  W.  Rep.  462.) 


HEALING  STATUTES   AND  THEIB   EFFECT. 


337 


And  in  that  state  it  is  held  that  the  appointment  of  a  guar- 
dian, under  this  prevision  of  statute1,  not  being  a  proceeding 
in  reference  to  a  guardian's  sale,  the  validity  of  the  appoint- 
ment is  not  collaterally  assailable, 

(Davis  v.   Eudson,  29  Minn.  27—11   X.  W.   Rep.   136.) 

though  in  Michigan  in  a  late  case  the  court  held  that  where 
administration  is  granted  under  a  petition  which  shows  on 
its  face  that  the  petitioner  is  not  entitled  to  letters,  a  sale  by 
him  of  the  lands  of  the  decedent  under  the  order  of  the 
court  is  absolutely  void. 

(Haug  v.  Piiiueau,  98  Mich.  91  —  57  N.  W.  Rep.  25.) 

Land  Must  be  Purchased  in  Good  Faith. 

§  257.  The  statutes  also  provide  that  the  land  must  have 
been  purchased  in  good  faith,  or  are  held  by  one  who  pur- 
chased them  in  good  faith.  A  purchase,  whether  directly 
or  indirectly,  by  the  fiduciary  himself  can  not  be  made  in 
good  faith  under  the  policy  of  our  law.  Accordingly,  if  the 
guardian  sells  the  ward's  lands  to  a  third  person,  who  im- 
mediately thereafter  reconveys  the  same  to  the  guardian  in- 
dividually for  the  same  consideration,  no  title  will  pass  by 
the  proceeding. 

(Winter  v.  Truax,  87  Mich.   324  —  49   X.  W.   Rep.   604.) 

The  statute  in  that  state  forbids  an  administrator,  executor 
or  guardian  from  purchasing  or  becoming  interested  in  the 
purchase,  either  directly  or  indirectly,  in  any  part  of  the 
lands  sold  by  them,  and  declares  a  sale  made  in  contravention 
of  the  statute  in  this  regard  void,  which  the  courts  have  con- 
strued to  mean  void  in  a  collateral  action. 

(McGraw  v.   Daly.  s2  Mich.  500  —  46  X.  W.   Rep.  671.) 

Though  a  diametrically  opposite  view  is  maintained  in 
Wisconsin  upon  a  statute  of  similar  import,  the  supreme 
court  of  that  state  having  construed  the  word  "void"  to 
mean  voidable  only  at  the  instance  of  parties  whose  rights 
are  prejudiced  thereby. 

(Melms  v.  Pabst  Brewing  Co.,  93  Wis.  153-66  N.  W.  Rep.  518.) 


Chapter  IV. 


Sales  Void  by  Reason  of  Errors  or  Omissions  Subsequent 
to  Judgment,  Decree  or  Order  of  Sale. 


ANALYSIS. 
Section  258.  General  Rule  as  to  the  Effect  of  Irregularities  —  The  In- 
forcement  of  a  Judgment  not  a  Judicial  Act. 

259.  Irregularities    will    Generally    not    Make    the    Sale 

Void. 

260.  Directions  in  Decree  Must  be  Pursued. 

261.  In  Case  of  Special  Healing  Statute. 

262.  A  valid   Execution   an   Indispensable   Requisite  —  Execu- 

tion Must  Issue  upon  a  Valid  Judgment. 

263.  Must  not  Issue  upon  a  Satisfied  Judgment. 

264.  Must  be  Awarded  by  the  Judgment   or  by  Law. 

265.  Must   be   Sufficient   and    Emanate   from   the    Proper 

Court. 

266. Law  Must  Authorize  Writ  to  Issue  against  Defend- 
ant. 

267. Must  Describe  Parties  and  Show  for  Whose  Benefit 

Issued. 

268.  The   Writ   of   Execution   Must   be   Sufficient   in    Form  — 

Must  Conform  to  Judgment  in  Amount  and  Substance. 

269.  When  Writ  Fails  to  Follow  Judgment  as  to  Parties. 

270. Execution  not  Under  Seal. 

271.  Sould  Run  in  the  Name  of  the  State. 

272.  Essential   Recitals   in   the  Writ. 

273.  Limitations   upon   Issuance   of   Execution  —  At    Common 

Law.  - 

274.  Under   the    Statutes. 

275.  Issuance   Pending   Stay   of   Proceedings. 

276.  Consequences  of  the  Premature  Issuance  of  Execution  — 

Issued  in  Violation  of  Statutory  Inhibition. 

277. Tudgment  Must  have  been  Rendered  Before  the  Writ 

can   Issue. 

278.  When  Advantage  Must  be  Taken  of  Premature  Issu- 
ance of  Writ. 

279.  Execution   Issued   after    Death   of  Judgment   Debtor  —  In 

Proceedings  in  the  Nature  of  in  rem. 

280. Consequences  of  Issuance  ofter  Death  of  Sole  Defend- 
ant. 

281. Death  of  One  Only  of  Several   Defendants. 


GENERAL   RULE    AS  TO  EFFECT  OF   IRREGULARITIES.         230 

Section  282.  Execution    [ssued  after  Death  of  Judgment  Debtor —  Is- 
sued Before,  but  Sale  After,  Death  of  Judgment  Debtor. 

283.  Effect  of  Issuance  of  Execution  After  Death  of  Sole  Judg- 

ment Creditor  —  Makes  Writ  at  Least  Irregular. 

284.  Sometimes  Makes  it  Wholly  Void. 

285.  Executions  Supported  by  Dormant  Judgment  —  Are  Void- 

able Only  as  Between  the   Parties. 

286. Intervening  Rights  of  Third   Persons. 

287.  Tn   Case   of   Absolute   Limitation   and   no    Provision   for 

Revivor. 
2S8.  Where  Judgment    Creditor    is   the   Purchaser. 

289.  Sale  under  Satisfied  Judgment  —  Is  Void  by  the  Weight 

of  Authority. 

290.  Silence  of  Record  and  no  Notice  gives  Title  to  Pur- 
chaser. 

291.  Effect  of  Reversal  of  Judgment  upon  the  Sale  Thereunder 

—  Purchase  by   Stranger   in   Good   Faith   and  Without 
Notice. 

292.  Defendant's    Rights    and    Remedy    upon    Reversal. 

293.  The  Pule  also  Applies   to  Judicial   Sales. 

294.  Want  of  Jurisdiction  Annuls  the  Sale  in  Any  Event. 

295.  By    Whom    the    Sale    Must    be    Conducted  —  In    Judicial 

Sales   Generally   by   the   Officer    Designated   in   Decree. 

296. In  Execution  Sales  by  the  Officer  to  Whom  the  Writ 

is  Directed. 

297.  Lands   Located   in   Another   County. 

298.  WMt  in  Officer's  Own  Favor. 

299.  Sales  by  Administrators,   Executors   and  Guardians. 

300.  Sale  by  Agent  of  Commissioner. 

301.  Limitations  on  Time  of  Making  Sale  —  Sales  Noticed  for 

and   on  Non-judicial   Days. 

302.  Sale    Made    upon    Day    Other    Than    That    Designated    by 

Statute. 

303.  After  Expiration  of  Active  Energy  of  Execution. 

304.  Sale    After    Death    of    Debtor    on    Execution    Issued 

Before. 

305.  Sale  on  Execution  Issued  After  Bar  of  the  Statute 

is  Complete. 

306.  'Execution  Issued  Before,  but  Sale  Made  After,  Lien 

of  Judgment   Expired. 

307. Where   Judgment   was   Satisfied    Before    Sale. 

308.  Statute  Repealed  or  Court  Abolished  Before  Sale. 

309.  Property  put   in   Hands   of   Receiver   Before   Sale. 

310.  When  Sale  Must  be  at   Public  Vendue  — Under  Executions 

and  Decrees  and  Orders  of  Sales. 

311.  When  levy  an  essential   requisite  —  Not   Necessary  Where 

Judgment  is  a  Lien  on  the  Land. 

312.  Where  Judgment  or  Decree  Directs  the  Sale  of  the 

Property. 


240  VOID    JUDICIAL    AND    EXECUTION    SALES. 

Section  313.  Where  Levy  an  Essential   Requisite  —  Where   Judgments 
are  not  General  Liens. 

314.  On  Personal  Property  under  Execution. 

315.  Effect  and  Sufficiency  of  Levy. 

316.  Failure    to    Take    Oath    Concerning   the    Sale  —  Statutes 

Requiring  Oath  held  Mandatory. 

317.  Effect  of  Failure  to  Give  Additional  Bond  — Object  of  Re- 

quiring  Such   Bond. 

318.  Under  Healing   Statutes,  Want  of  Bond  is   Fatal. 

319.  Where  no  Healing  Statutes  Exist,  Want  of  Bond  not 

fatal. 

320.  Effect   of   Want   of   Notice   of   Sale  —  The   Object   of   the 

Notice  of  Sale. 

321.  Purchaser   Free  from   Fault. 

322.  Fraud  and  Collusion  Imputed  to  purchaser. 

323.  In   Administrator's,   Guardian's   and   Other   Judicial 

Sales. 

324.  In   States  Having  a   Healing  Statute  Notice  Essen- 
tial. 

325.  Notice  an  Imperative  Requirement. 

326.  Notice  May  be  Waived. 

327.  Time  and  Place  Bids  Receivable  —  Bid  Must  be  Made  at 

Time  of  Sale. 

328.  Plaintiff's  Bid  When  no  Other  Persons  Present. 

329.  Sales  Made  at  an  Improper  or  Unauthorized  Place  —  In 

Judicial   Sales  an  Irregularity  Merely. 

330.  Execution  Sales  of  Land  Outside  of  County  are  Void. 

331.  Of  Personal  Property  sold  Under  Execution. 

332.  Sales  Without   Appraisement   or   Inquisition  —  Are   Void 

by  the  Current  of  Authority. 

333.  Are  also  Held  Voidable  Merely. 

334.  Waiver    of    Appraisement. 

335.  In  Sales  by  Administrators  and  Guardians. 

336.  Sales  to  Raise  Excessive  Amount  —  Makes  the  Sale  Void- 

able  merely. 

337.  Makes  the  Sale  Void. 

338.  Sometimes  Held  to  Make  Probate  Sale  Void. 

339.  Sale   of   Excessive   Quantity  —  Sometimes   Held   to   Make 

the  Sale  Void. 

340.  Is  an  Irregularity  Making  the  Sale  Voidable  Merely. 

341.  Sales  of  Property  or  Interest  not  Liable  —  Of  Third  Per- 

son can  not  be  sold. 

342.  Naked  Legal  Title  Only  Held  by  Judgment   Debtor. 

343.  Sale  <>f  Homestead  is  Void. 

344.  Sale  of  Land  not  Embraced  in  the  Order  of  Sale. 

345.  Sale   of   Exempt   Personal   Property   is   Void. 

346.  Property  of  Municipal   Corporation. 

347.  Community     Interest    for    Separate     Debt     of     One 

Spouse. 


GENERAL  RULE  AS  TO  EFFECT  OF  IRREGULARITIES.         "ill 

Section  348.  Sales  <>t'  Partial  Estate,  or  of  Different   Interest —  Where 
Execution  Defendant  is  Owner  of  Entire   Fee. 

349.  Sales  in  Probate  Proceedings. 

350.  Sale  of  Property  Subject  to  Mortgage. 

351.  Sales  of   Land  in  Adverse  Possession  —  At  Common  Law- 

was  Void. 

352.  Void  Cinder  Process  of  Law. 

353.  Does   not    Affect    Execution  of  Judicial   Sale.-. 

354.  Indefinite    or    Undesignated    Trad    Sold  —  If    Inherently 

Defective  in    Description  Sale  Void. 

355.  Effect   of   Inadequacy  of  Price — .Mere    Inadequacy   alone 

no*    Sufficient   to  Avoid  a   Sale.  . 

356.  . Gross  Inadequacy  Sometimes  held  Sufficient  to  Avoid 

Sale. 

357.  Inadequacy  Coupled  with   Irregularities. 

358.  Sales  in  solido  —  Are  Usually  Considered  Voidable  Only. 
350.  Also  Considered  to  Make  the  Sale  Void. 

.300.  Combinations  and  Devices  to  Prevent  Competition- — 

Stifling  Bidding  is  Fraudulent  and  .Makes  Sale  Invalid. 

361.  No  Title  will  Pass  to  the  Fraudulent  Purchaser. 

362.  Sales  of  Disqualified  Purchasers  —  Are  Against  Pub- 
lic  Policy. 

363.  Declared  Void  by  Statute  in  Some  States. 

o(;4.  Direct  Purchase  of  Fiduciary  is  Void. 

365.  Purchase  by  Sheriff  or  Constable. 

366.  Purchases  by  Judges  or  Attorneys  in  the  Case. 

367.  Purchase  by  Administrator  after  the  Sale. 

36S.  Secret  Frauds  and  Infirmities  Ineffectual  on  Title  of  Pur- 
chaser—  Fraud  Vitiates  the  Sale. 

369.  Purchaser  Free  from  Negligence  and  Fraud  is  Pro- 
tected. 

370.  Judgment  Creditor  not  an  Innocent  Purchaser. 

371.  Property  Charged  with   Liens  and   Trusts. 

372.  Innocent  Purchaser  from   Fraudulent   Vendee. 

373. Judgment  in  Fact   Satisfied,  but  Record  Silent. 

."74.  Misappropriation  of  Purchase  Money. 

375.  Purchase  Money  not  Fully  Paid. 

376.  Omission  of  Return  or  Defective  Return. 

377.  ■ Purchase   Money   Must    be   Paid  to   Proper  Officer. 

37S.   Pre-existing  Equities  and  Unrecorded  Deeds. 

(IKXERAL  EULE  AS  TO  TTTE  EFFECT  OF  IKKEGU- 

LAKITIES.  ' 

The  Enforcement  of  a  Judgment  not  a  Judicial  Act. 

§   258.  Irregularities  produced   in   the  exorcise1   of  minis- 
terial authority  in  the  conduct  of  the  sale  will  he  the  chief 
16 


■'.  12  VOID   JUDICIAL   AND   EXECUTION    SALES. 

consideration  to  which  the  present  chapter  will  be  devoted. 
The  rendition  of  the  judgment  or  the  making  of  the  order, 
decree  or  license  of  sale,  is  manifestly  a  purely  judicial  act, 
whereby  the  court  enunciates  a  judicial  declaration  of  the 
sentence  of  the  law  upon  the  facts  involved,  pursuant  to  the 
peculiar  issues  joined  by  the  contending  litigants,  or  the  state 
of  the  record.  Accordingly,  the  exercise  of  the  power  of 
pronouncing  it  is  judicial  as  contra-distinguished  from  the 
authority  which  i-  exercised  in  the  enforcement  of  such  judg- 
ment, license,  order  or  decree,  which  is  chiefly  ministerial. 
In  some  instances,  as  in  execution  sales  where  no  confirma- 
tion is  required  by  the  provisions  of  the  statute,  the  exercise 
of  authority  is  purely  ministerial,  the  sheriff's  right  to  sell 
and  convey  under  the  writ  being  a  mere  naked  power  given 
by  statute,  the  foundation  of  which  is  the  judgment  itself. 
The  execution  is  merely  the  process  of  the  court  authorizing 
the  enforcement  of  the  judgment  and  a  direction  to  the  officer 
to  proceed  with  its  enforcement. 

(Blatchford  v.  Conover,  40  X.  J.  Eq.  205  —  1  Atl.  Rep.  16  —  7  Atl. 
Rep.  354:  Todd  v.  Philhower,  24  X.  J.  L.  796;  Shortzell  v.  Martin.  Hi 
Iowa.  519:  Foreman  v.  Hunt,  3  Dana,  014;  Den  v.  Zellers,  2  Hal.st.  153; 
Den  v.  Mulford,  1  Zab.  500.) 

Irregularities  Will  Generally  not  Make  the  Sale  Void. 

^  259.  Upon  the  rendition  of  the  judgment,  or  order  of 
sale,  the  judicial  functions  of  the  court  generally  cease,  and 
the  enforcement  thereof  is  generally  accomplished  prin- 
cipally through  the  instrumentality  <>f  the  functionaries  of 
the  court,  exercising  in  this  regard,  ministerial  authority. 

It  is  in  the  execution  of  this  power  that  many  trifling  as 
well  as  serious  errors  and  omissions  occur  which  impair  the 
validity  of  execution,  chancery  and  probate  sales,  and  for 
which  infirmities  courts  adjudge  them  void.  The  conclusion 
deduced  from  the  consensus  of  all  judicial  enunciation-  is, 
that  with  respect  to  mere  errors  or  irregularities  occurring  in 
the  proceedings  of  sale  a-  conducted  by  the  ministerial  func- 
tionary of  the  court,  the  title  of  the  purchaser,  to  whom  no 
fanlt  can  lie  imputed,  can  not  be  determined  at  law  or  in 
equity. 

The  correction  of  errors  or  irregularities  with  which  a  sale 
may  he  impregnated  nm-t  be  accomplished  in  a  proceeding 
directly  instituted  for  th.it  purpose,  either  in  the  original  case 


GENERAL   RULE   AS  TO    EFFECT  OF   [RREGTJLARITIES.        243 

or  by  separate  action  in  equity.  If  this  method  is  not  pur- 
sued to  obtain  the  correction,  any  errors  or  irregularities  are 
wholly  unavailable  as  a  means  to  overthrow  or  question  the 
title  of  the  purchaser  thus  acquired,  in  a  collateral  proceed- 
ing This  general  rule  obtains  whether  the  sale  is  consum- 
mated under  an  execution,  or  under  an  order,  lieense  or 
decree,  of  the  probate  or  chancery  court. 

Jurisdiction  having  once  been  properly  conferred,  accord- 
ing to  a  principle  of  law  deeply  founded  in  reason  and  settled 
beyond  the  cavil  of  dispute  in  the  jurisprudence  of  our  law, 
the  sale  is  impregnable  upon  an  attempt  at  collateral  im- 
peachment, for  mere  defects  or  irregularities,  with  which  it 
may  be  beset,  occurring  from  an  erroneous  or  defective  exer- 
cise of  such  jurisdiction.  With  the  exception  of  those  essen- 
tials enumerated  in  the  statutes  of  several  states  in  regard  to 
sales  by  administrators,  executors  and  guardians,  the  ac- 
quisition of  jurisdiction  unalterably  precludes  collateral 
inquiry,  for  the  sale  is  then  impervious  to  such  an  attack. 

(Van  Matre  v.  Sankey,  148  111.  536-36  N.  E.  Rep.  628;  Carden  v. 
Lane  48  Ark  216  —  2  S.  W.  Rep.  TOO;  McCullough  v.  Estes,  20  Ore. 
349-25  Pac.  Rep.  724:  Morrill  v.  Morrill,  20  Ore.  96-25  Pac.  Rep. 
362;  Swift  v.  Yanaway,  153  111.  197-38  N.  E.  Rep.  589;  Stotts  v. 
Brookfield,  55  Ark.  307-18  S.  W.  Rep.  179;  People  v.  Seelye,  146  II. 
189_32  N  E.  Rep.  45S;  Mills  v.  Lombard,  32  Minn.  259  —  20  N.  W. 
Rep  187;  Ferguson  v.  Quinn,  123  Pa.  St.  337-16  Atl.  Rep.  844;  Levan 
v  Millholland,  114  Pa.  St.  49-7  Atl.  Rep.  194;  Kennedy  V.  Baker,  159 
Pa  St  146  —  28  Atl.  Rep.  252;  Durham  v.  Heaton,  28  111.  264  -  SI  Am. 
Dec  275-  Walker  v.  McKnight,  15  B.  Mon.  467-61  Am.  Dec.  190; 
Byers  v  Fowler,  12  Ark.  218-54  Am.  Dec.  271;  Case  v.  Gregory,  13 
B  Mon.  505-56  Am.  Dec.  581;  Sydnor  v.  Roberts,  13  Tex.  598-65 
\m  Dec.  84;  Whitman  v.  Taylor,  60  Mo.  127:  Edwards  v.  Ealbert,  64 
Tex.  667;  Fowler  v.  Poor,  93  N.  C.  466;  Cooley  V.  Wilson,  42  Iowa.  425; 
Hedges  v.  Mace.  72  111.  472.) 

But  a  direct  proceeding  instituted  for  the  purpose  of  im- 
peaching the  title  of  a  purchaser  other  than  the  judgment 
creditor,  for  intervening  errors,  is  as  clearly  a  collateral  pro- 
ceeding as  if  the  action  were  one  at  law  in  ejectment  for  the 
recovery  of  the  premises. 

(Carden  v.  Lane.  4S  Ark.  216-2  S.  W.  Rep.  709;  Swift  v.  Yanaway, 
153  m.  197  —  38  N.  E.  IN-p.  589;   Moore  v.  Neil,  39  111.  256.) 

Tn  technical  judicial  sales,  and  in  sales  under  execution  in 
those  states  where  confirmation  is  a  statutory  requisite,  all 
irregularities  with  which  the  sale  may  he  environed,  happen- 


244  VOID  JUDICIAL   AXD  EXECUTION   SALES. 

ing  subsequent  to  the  judgment  or  decree,  are  cured  by  the 
order  of   confirmation,1  which   concludes   all   subsequent   in- 
quiry,  save  by   appeal   or   by   direct   action   in   a  court   of 
equitable  cognizance  when  fraud,  accident  or  mistake  can  be 
charged.     Much  confusion  and  an  interminable  contrariety 
of  judicial  opinion  is  found  regarding  sales  in  probate  which 
numerically  exceed  all  other  judicial  sales.     The  conflict  is 
partly  due  to  the  heterogeneity  of  statutory  regulations  in 
the  different  states,  and  partly  to  the  extreme  hostility  with 
which  some  courts  regard  such  sales.     The  tendency  is  how- 
ever toward  relaxation,  extending  equal  indulgence  to  these 
as  to  general  chancery  sales.     Tn  fact  in  some  of  the  states 
probate  and  chancery  sales  are  placed  upon  an  equal  footing. 
Accordingly,  where  the  more  liberal  and  indulgent  rule 
prevails    in    administration    sales,    mere    irregularities,    not 
affecting  the  jurisdiction  of  the  court,  will  not  be  considered 
as  of  vitiating  consequence  to  the  title  of  the  purchaser,  any 
•more  than  it  will  in  sales  in  chancery.     The  rights  of  the 
purchaser  at  such  sales,  who  has  invested  his  money  upon  the 
faith  of  a  decree  of  a  court  of  competent  jurisdiction,  are  of 
equal  magnitude  and  commensurate  justness  to  those  of  the 
heir.       Hence,  jurisdiction  existing  and  no  irreconcilability 
beimr  disclosed  between  it  and  the  record,  the  proceedings  of 
sale  are  conclusive  upon  collateral  attack.     Any  other  rule, 
it   would   seem,   would   be   alike   absurd    and    immeasurably 
injurious  in  its  consequences  in  the  maintenance  of  valid 

titles. 

(Lyons  v.  Hamner.  S4  Ala.  197  —  4  So.  Rep.  2fi:  Swift  v.  Yanaway, 
153  111.  197  —  38  X.  1-:.  Bep.  589:  People  v.  Seelye,  146  111.  189  —  32  X. 
E.  Bop.  4.--  Satcher  v.  Satcher,  41  Ala.  20  —  91  Am.  Dec.  49--.  Eppinper 
v.  Robinson.  21  Ela.  36;  Ranis  v.  Lester,  80  111.  307;  Price  v.  Winter. 
15  Fla.   G6.) 

Directions  in  Decree  Must  be  Pursued. 

§  260.  In  some  cases  it  is  stated  as  a  general  rule  that  a 
sale  made  under  a  decree  in  equity  must  pursue  the  direc- 
tions therein  contained,  and  that  a  material  departure  from 
such  directions  in  the  conduct  of  the  sale  renders  it  void. 

(Cofer  v.  Miller.  7  Bush,  545;  Williamson  v.  Berry,  8  How.  544; 
Jarboe  v.   Colvin,  4  Bush,   70.) 

However,  before  fhi^  rule  can  be  invoked,  on  principle  and 
authority,  the  departure  must  be  of  a  very  material  char- 


GENERAL  RULE  AS  TO   EFFECT  OF   IRREGULARITIES.  245 

acter  and  of  such  nature  that  it  is  not  cured  by  the  order  of 
confirmation  which  was  entered  in  due  form  by  the  court 
having  authority  to  enter  it. 

(Welch  v.  Louis,  31   111.  440;  McGavoek  v.  Bell,  3  Coldw.  512. 

Unless  the  departure  involves  a  matter  of  important  ma- 
teriality within  the  category  of  defects  which  are  not  ad- 
judicated and  cured  by  the  order  of  confirmation  properly 
entered  upon  the  report  of  the  sale,  a  departure  from  the 
order  or  decree  of  sale  does  not  produce  a  fatal  infirmity  in 
the  sale,  and  therefore  does  not  expose  it  to  impeachment  in 
a  collateral  proceeding.  And  even  in  case  of  a  material 
departure,  if  it  is  such  a  departure  as  might  have  been  origi- 
nally incorporated  in  the  decree,  the  defect  is  cured  by  the 
order  of  confirmation. 

(Hamman  v.  Mink,  99  Ind.  279;   Robertson  v.  Smith,  94  Va.  250  — 

26  S.  E.  Rep.  579;  Conover  v.  Musgiove,  68  111.  58;  Langyher  v.  Patter- 
son, 77  Va.  470;   Jacob's  Appeal,  23  Pa.  St.  477;   Lancaster  v.  Wilson, 

27  Gratt.  624;  McGavoek  v.  Bell,  3  Coldw.  512;  Hess  v.  Baker,  26  Gratt. 
746.) 

In  Case  of  Special  Healing  Statutes. 

§  261.  In  some  of  the  states  where  special  healing  statutes 
have  been  enacted  providing  that  when  certain  things  appear 
to  have  been  done  in  the  case  of  sales  by  administrators, 
executors  and  guardians  the  sale  shall  not  be  avoided  by  an 
heir  or  ward,  a  different  rule  obtains  by  virtue  of  such 
statutes.  Thus,  it  is  held  that  if  any  of  the  enumerated 
essentials  have  been  omitted,  such  as  the  omission  of  giving 
an  additional  or  sale  bond,  taking  the  oath  or  giving  the 
notice  of  sale,  the  sale  is  held  void.  Ordinarily,  in  the 
absence  of  statute,  these  omissions  are  at  most  but  mere 
irregularities,  and  under  a  rule  well  settled,  could  not  make 
the  proceedings  of  sale  a  nullity  after  confirmation. 

(Weld  v.  Johnsi  n  Mfg.  Co.,  84  Wis.  537  —  54  N.  W.  Rep.  335;  Melius 
v.  Pfister,  59  Wis.  ISO— 18  X.  W.  Pep.  255;  Williams  v.  Morton,  38 
Me.  47  —  61  Am.  Doc.  229;  Babcock  v.  Cobb,  11  Minn.  347;  Ryder  v. 
Flanders.  30  Mich.  336;  Montour  v.  Purely,  11  Minn.  384  —  88  Am.  Dec. 
88;  Walker  v.  Goldsmith,  14  Ore.  125  —  25  Pae.  Rep.  537;  McGrubb  v. 
Bray,  36  Wis.  3:;:;:  Williams  v.  Reed,  5  Tick.  480;  Tracy  v.  Roberts,  88 
Me.  310  —  34  Atl.  Pep.  68;  Hartley  v.  Croze,  38  Minn.  3,75  — 51  X.  W. 
Rep.  915;  Bachelor  v.  Korb,  78  N.  W.  Rep.  485.) 


246  VOID  JUDICIAL  AND   EXECUTION   SALES. 

A  VALID  EXECUTION  AX  INDISPENSABLE 
REQUISITE. 

Execution  Must  Issue  Upon  a  Valid  Judgment. 

§  262.  In  suits  at  common  law  for  money  judgments,  no 
confirmation  being  required  subsequent  to  sale,  the  functions 
of  the  court  terminate  upon  the  rendition  of  the  judgment. 
To  enforce  the  judgment  a  writ  of  execution  or  fieri  facia*. 
emanating  from  the  judicial  tribunal  wherein  the  judgment 
was  rendered,  and  founded  upon  it,  is  necessary,  for  with- 
out a  writ   there  is  no   authority  vested   in   any  officer  to 
enforce  it.     A  sale  of  the  judgment  defendant's  property  in 
the  absence  of  an  execution  is  manifestly  unwarranted  and 
plainly  void,   notwithstanding  by   provision   of   statute   the 
judgment  itself  is  made  a  general  lien  upon  the  property 
thus  sold.      This  proposition  is  so  axiomatic  as  to  preclude 
the  necessity  for  further  argument. 

The  judgment  being  the  foundation  upon  which  the  entire 
proceedings  of  sale  are  based,  must  not  only  be  perfect  in 
form  and  final  in  nature,  but  must  also  be  invulnerable-  upon 
collateral  attack  at  least:  therefore,  a  void  judgment  being 
subject  to  collateral  impeachment  by  reason  of  inherent 
infirmity  will  be  insufficient  to  sustain  the  writ  or  sale  and 
impregnates  all  subsequent  proceedings  with  similar  ingredi- 
ents of  invalidity,  not  alone  depriving  the  purchaser  of  title 
but  also  leaving  him  without  a  remedy  for  his  misfortune. 
A  void  judgment  furnishes  no  justification  for  acts  done 
under  it,  nor  will  it  constitute  a  foundation  for  acquiring 
rights:  and  by  analogy,  can  divest  no  rights.  The  whole 
proceedings  are  coram  non  judice  and  void  and  may  be  ques- 
tioned anywhere  and  everywhere  and  by  everybody. 

(Bullard  v.  McArdle,  98  Cal.  355  —  33  Pac.  Rep.  193;  Olson  v.  Xun- 
nally.  47  Kan.  391  —  2S  Pac.  Rep.  149:  Mdlwain  v.  karstens.  152  111. 
135_38  X.  E.  Pep.  555;  McCracken  v.  Flanagan,  141  X.  Y.  174  —  36 
N.  E.  Rep.  10;  Real  Kstato  Co.  v.  Bendrix,  28  Ore.  4S5  — 42  Pac-.  Pep. 
514-.  Anderson  v.  Gray,  L34  111.  550  —  25  N.  E.  Rep.  843;  Hollingsworth 
v.  Bagley,  35  Tex.  345;  Mining  Co.  v.  Mining  Co..  Ill  111.  32;  Truetl  v. 
Legg,  32  Mil.  150;  Roberts  v.  Stowers,  7  Bush,  295:  Meyer  v.  Mintoyne, 
106  111.  414;  Morton  v.  Root,  2  Dill.  312;  Hargis  v.  Morse,  7  Kan.  417.) 

By  analogy,  the  issuance  of  a  writ  of  execution  upon  a 
void  judgment  is  equivalent  to  the  issuance  of  the  writ  in 


A  VALID   EXECUTION    AN    INDISPENSABLE    REQUISITE.      2-17 

the  total   absence   of  judgment,   both   being  unconditional 

nullities. 

(Nabours  v.  Cocke,  24  Miss.  44;  Chase  v.  Dana.  44  111.  262;  Roberts 
V.  Stowers,  7  Bush,  295;  Johnson  v.  Baker,  3S  111.  98;  .Morris  v.  Hogle, 
37   111.    150.) 

Or,  if  from  any  cause  the  judgment  has  become  incapable 
of  enforcement  by  execution,  or  if  some  of  the  parties  have 
died  without  a  subsequent  revivor,  and  execution  is  never- 
theless issued,  there  are  many  cases  holding  that  no  authority 
will  be  conferred  upon  the  officer  thereby,  and  accordingly, 
the  proceedings  thereunder  are  void.  The  officer's  authority 
invariably  depends  upon  the  character  and  validity  of  the 
process  which  justifies  his  actions. 

(Oldfield  v.  Eulert,  148  111.  614-36  N.  E.  Rep.  615;  Mclhvain  v. 
Karstens,  152  111.  135  —  38  N.  E.  Rep.  555.) 

Must  not  Issue  Upon  a  Satisfied  Judgment. 

§  263.  Payment  of  the  judgment  inevitably  produces 
satisfaction  and  destroys  its  legal  efficacy  as  such,  as  well  as 
terminates  the  lien  of  the  same  created  by  implication  of 
law ;  accordingly,  the  judgment  must  not  be  satisfied  before 

the  writ  issues. 

(Boos  v.  Morgan,  130  Ind.  305  —  30  N.  E.  Rep.  141;  Insurance  Co.  v. 
Vanlue  120  Ind.  410  —  26  N.  E.  Rep.  119;  Chapin  v.  McLaren,  105  Ind. 
5G3-5  N.  E.  Rep.  68S;  Doe  v.  Ingersoll,  11  S.  &  M.  249  —  49  Am.  Dec. 
57-  Murrell  V.  Roberts.  11  Ired.  424  —  53  Am.  Dec.  419;  Wood  v.  Colvin, 
o  Hill,  506  —  38  Am.  Dee.  5S8;  Drefahl  v.  Tattle.  42  Iowa,  177;  Shields 
v.  Moore,  84  Ind.  440;  French  v.  Edwards,  5  Sawyer,  266;  Finley  v. 
Gaut,    8   Baxt.    148.) 

It  is  a  generally  conceded  rule  that  the  purchaser  at  an 
execution  sale  gets  no  better  title  than  the  judgment  can 
actually  confer  upon  him,  and  in  conformity  to  this  princi- 
ple, if  the  judgment  be  satisfied  although  the  record  fails  to 
disclose  this  state  of  facts,  a  bona  fide  purchaser  under  an 
execution  issued  upon  such  satisfied  judgment  gets  nothing 
by  his  purchase. 

(Clute  v.  Emerick,  99  N.  Y.  342-2  X.  E.  Rep.  6;  Frost  v.  Bank,  70 
N.  y.  553-26  Am.  Rep.  627;  Craft  v.  Merrill.  14  N.  Y.  456;  Carpenter 
v.  Stilwell.  11  N.  V.  61.) 

But  a  writ  issued  upon  a  dormant  judgment  is  merely 
voidable  and  the  sale  thereunder  may  be  avoided,  but  can  not 
be  collaterally  impeached  as  it  is  not  an  absolute  nullity 


248  VOID   JUDICIAL   AXD   EXECUTION   SALES. 

(Gardner  v.  Kail  way  Co.,  102  Ala.  635  —  15  So.  Rep.  271;  Gillespie  v. 
Switzer,  43  Neb.  772  —  02  IS.  W.  Rep.  228;  Diaper  v.  i\ixon,  93  Ala.  436 

—  8  So.  Rep.  489;  Eddy  v.  Coldwell,  23  Ore.  163  —  31  Pac.  Rep.  475; 
Yeager  v.  Wright,  112  Ind.  230  —  13  N.  E.  Rep.  707;  Gerecke  v.  Camp- 
bell, 24  Neb.  306  —  38  N.  W.  Rep.   847.) 

Must  be  Awarded  by  the  Judgment  or  by  Law. 

§  264.  The  issuance  of  the  execution  is  merely  a  minis- 
terial act,  though  the  awarding  of  the  same  has  been  con- 
sidered as  the  exercise  of  a  judicial  function.  Consequently, 
if  the  judgment  itself,  in  contemplation  of  law,  does  not 
award  the  execution,  which  however  it  generally  does,  the 
writ  can  not  issue  except  upon  special  order  of  the  proper 
court,  and  it  must  be  issued  by  the  proper  officer  in  any  event. 

(Evans  v.  Ethridge.  96  N.  C.  42  —  1  S.  E.  Rep.  633 ;  Kyle  v.  Evans,  3 
Ala.  481  —  37  Am.  Dee.  705;  Furman  v.  Dewall.  35  Iowa.  170;  Perry 
v.  Whipple,  38  Vt.  27S;   Seaton  v.  Hamilton,  10  Iowa,  394.) 

And  by  analogy  a  forged  writ,  though  apparently  perfect 
and  authentic,  is  unauthorized  because  not  issued  by  the 
proper  officer ;  or  if  it  is  spurious  in  any  material  part  it 
vitiates  the  writ. 

(Silvan   v.  Coffee,  20  Tex.  4—70  Am.  Dec.   371.) 

Must  be  Sufficient  and  Emanate  from  the  Proper  Court. 

§  265.  The  execution  being  the  process  under  which  the 
sale  is  made,  it  must  be  valid,  or  else  no  title  can  be  acquired 
under  it,  even  if  the  sale  does  receive  the  judicial  sanction  of 
the  court  by  confirmation, 

(Lamaster  v.  Keeler,  123  U.  S.  376  —  8  Sup.  Ct.  Rep.  197;  Burt  v. 
Hasselman,  139  Ind.  196  —  38  X.  E.  Rep.  59S.) 

and  must  emanate  from  the  court  wherein  the  judgment  was 
obtained,  in  the  absence  of  statutory  authority  at  least. 

(Shattuck  v.  Cox,  97  Ind.  242:  Clarke  v.  Miller,  18  Barb.  270;  Field 
v.  Paulding,  2  Abb.  Pr.   1 

Tf  the  writ  of  execution  issued  out  of  an  abolished  court 
it  has  no  validity  upon  the  plainest  of  principles:  but  when 
issued  and  seizure  made  before  the  abolition  of  the  court, 
the  sale  may  be  subsequently  consummated  under  the  au- 
thority of  the  court  to  which  the  records  and  proceedings  of 
the  abolished  court  have  been  transferred. 

(Gorman  v.  People.  17  Colo.  596 —  31  Pac.  Rep.  335;  Chase  v.  Gas  Co., 
45  La.  Ann.  300—12  So.   Rep.  308;  Norton  v.  Shelby  Co..  118  U.  S.  425 

—  6   Sup.    Ct.    Rep.    1121.)  • 


A   VALID    EXECUTION    AX    [NDISPENSABLE    REQUISITE.      249 

Law  Must  Authorize  Writ  to  Issue  Against  Defendant. 

§  266.  It  is  absolutely  essential  that  the  person  or  corpo- 
ration be  such  as,  under  the  law  existing  when  the  judgment 
was  rendered,  execution  can  be  issued  against.  Therefore, 
if  the  judgment  recovered  againsl  a  municipal  corporation, 
being  ordinarily  but  the  determination  of  a  valid  claim 
against  it,  no  execution  can  be  awarded  upon  it,  and  if 
erroneously  issued  may  be  quashed. 

(Petersburg  v.  Whitnack,  4s  111.  App.  663;  Gilmau  v.  Contra  Costa 
QoM  8  Cal.  52—68  Am.  Dec.  290;  Village  of  Kansas  v.  Juntgen,  84  111. 
360;  I'.loomington  v.  Brokaw,  77  111.  L94;  Emerick  v.  Gilman,  10  Cal. 
404  —  70  Am.  Dec.  742;  Wilson  v.  Commonwealth,  7  \Y.  £  S.  L97; 
Supervisors  v.  Edwards,  76  111.  ."44.) 

And  generally  the  same  rule  applies  to  judgments  re- 
covered against  administrators  and  executors  as  such  upon  a 
cause  of  action  which  accrued  against  the  decedent  or  intes- 
tate. 

(Bull  v.  Harris,  31  111.  487;  Hone  v.  Spivy,  44  Ga.  616.) 

Must  Describe  Parties  and  Show  for  Whose  Benefit  Issued. 

§  267.  Manifestly,  a  writ  which  fails  to  show  for  whose 
benefit  it  was  issued,  nor  upon  what  judgment  or  decree  it 
is  founded,  nor  out  of  what  tribunal  it  emanated  is  so  fatally 
defective  that  no  title  can  arise  from  any  proceeding's  of  sale 
thereunder. 

(Brown  v.  Duncan,  132  111.  413  —  23  X.  E.  Rep.  1121).) 

It  is  held  under  a  statute  requiring  a  correct  description 
of  the  judgment  and  parties,  in  the  execution,  that  the  sale 
is  void  if  the  writ  mentions  but  one  of  the  several  parties 
composing  the  firm  in  whose  name  the  judgment  was  entered 
and  stands. 

(Irvin  v.  Ferguson,  83  Tex.  491  —  18  S.  W.  Rep.  820;  Cleveland  v. 
Simpson,  77  Tex.  P<'»  —  13  S.  W.  Rep.  851.) 

The  fact  that  the  execution  calls  for  an  excessive  amount 
has  been  held  sufficienl  to  render  the  writ  void; 

(Prescott  v.  Prescott,  (',:.'  Me.    128;   Hastings  v.  Johnson,  1   Nev.  613.) 

though  this  is  generally  held  not  to  he  a  fatal  defect,  hut  may 

be  remedied    by  setting   the   writ    aside   to   the  extent    of   the 

excess. 

(Bogle  v.  Bloom,  36  Kan.  512  —  13  Pae.  Rep.  793;  Anderson  v.  Gray, 

134  hi.  550  —  25  X.  E.  Rep.  843;    Bachelder  \.  (  haves,  :.   N.   M.  5o2  — 
25  Pac.  Rep.  783.) 


250  VOID  JUDICIAL   AND   EXECUTION   SALES. 


THE  WRIT  OF  EXECUTION  MUST  BE  SUFFICIENT 

IN  FOEM. 

Must  Conform  to  Judgment  in  Amount  and  Substance. 

§  268.  It  is  an  inherent  power  lodged  in  every  court  to 
issue  fieri  facias  upon  its  own  judgments.  The  writ  of  exe- 
cution is  issued  upon  a  judgment  or  decree  for  the  purpose 
of  enforcing  it,  and  is  the  final  process  in  the  suit,  being  an 
authority  emanating  from  the  commonwealth.  Accordingly, 
CO  be  effective  it  is  indispensable  that  it  contains  the  descrip- 
tion of  a  judgment  and  disclosing  upon  its  face  the  authority 
for  its  issuance.  Consequently  it  is  essential  that  it  pur- 
ports to  emanate  from  competent  authority.  It  is  a  para- 
mount requisite  that  there  be  no  substantial  defects  in  the 
form  of  the  writ,  and  it  must  embody  a  direction  to  the 
officer  who  receives  it  for  execution  to  proceed  to  obtain  satis- 
faction of  the  judgment  upon  which  it  is  founded.  There- 
fore, it  is  a  general  rule  that  conformance  to  the  judgment  is 
imperative,  and  a  material  variance  therefrom  vitiates  the 
writ.  While  the  principle  is  susceptible  of  comprehension 
without  difficulty,  its  application  is  environed  with  inter- 
minable perplexities  and  enveloped  with  a  bewildering  con- 
flict of  judicial  enunciations. 

Errors  or  omissions  of  merely  formal  parts  of  a  writ  will 
not  render  it  void  though  it  may  be  voidable  for  this  reason. 
So  it  has  been  held  that  a  misdescription  by  way  of  a  recital 
of  a  judgment  in  an  excessive  amount  is  equivalent  to  the 
case  of  no  judgment,  the  variance  being  considered  material 
and  fatal  to  the  writ, 

(Preseott  v.  Prescott,  62  Mr.  42S;  Hastings  v.  Johnson.  1  Nov.  613.) 

while  on  the  other  hand  a  similar  defect  is  considered  nothing 
but  a  mere  irregularity,  not  of  sufficient  gravity  to  destroy 
the  identification  of  the  judgment,  and  the  writ  is  voidable 
only  in  consequence  thereof. 

(Bogle  v.  Bloom,  36  Kan.  512  —  13  Pac.  Rep.  793;  Anderson  v.  Cray. 
L34  111.  550  25  X.  E.  lop.  S43;  Bachelder  v.  Chevas,  :>  N.  M.  :>c.2 — 
2.r,  Pae.  Rep.  7-:;:  Dickens  v.  Crane.  33  Kan.  344-  6  Pac.  Rep.  030; 
Railway    Co.  v.   Rierson,  38   Kan.  359       16   Pae.  Rep.  443.) 

When  Writ  Fails  to  Follow  Judgment  as  to  Parties. 

§  269.  There  is  much  contrariety  among  the  adjudicated 
cases  as  to  the  effect  of  a  variance  between  the  execution  and 


WRIT  OF  EXECUTION   MUST  BE  SUFFICIENT  IN  FORM.         251 

the  judgment  as  to  the  parties  plaintiff  or  defendant.  Tims, 
it  is  held  in  Texas  thai  a  sale  und  r  an  execution  against  a 
defendant  reciting  his  Christian  name  incorrectly  will  not 
pass  the  title  to  property  owned  by  the  judgment  defendant, 
the  variance  between  the  writ  and  judgment  being  consid- 
ered material  and  fatal. 

(Battle  v.   Guedry,   58  Tex.   111.) 

And  the  variance  in  an  execution  upon  a  judgment  against 
a  partnership  directed  against  not  only  the  partnership  but 
also  the  individual  members  thereof,  not  as  members  but  as 
distinct  persons,  was  held  fatal. 

(Clayton  v.  May,  68  Ga.  27.) 

But  diametrically  the  opposite  doctrine  is  asserted  in  New 
Hampshire. 

(Vogt  v.  Ticknor,  48  X.  H.  242.) 

Xd  title  is  acquired  by  a  purchaser  upon  a  sale  under  an 
execution  which  was  issued  in  the  name  of  one  only  of  a 
partnership  upon  a  judgment  recovered  in  favor  of  the  firm. 

(Cleveland  v.   Simpson.   77  Tex.  96  —  13  S.  W.  Rep.   S51.) 

In  Tennessee  it  is  held  that  it  is  merely  an  irregularity 
that  the  execution  fails  to  follow  the  judgment  by  omitting 
the  name  of  one  of  the  defendants;  in  a  proceeding  for  that 
purpose  the  writ  may  be  quashed  for  that  reason,  but  a  sale 
under  it  will  pass  title  to  the  purchaser. 

(Lee  v.  Crossna,  6  Humph.  281.) 

In  a  late  case  in  Illinois  it  is  held  that  a  variance  between 
the  Christian  name  of  the  nominal  plaintiff  in  the  judgment 
and  in  the  execution  issued  thereon  is  not  fatal  if  it  appears 
from  the  whole  record  that  the  writ  was  in  fact  issued  under 
the  judgment. 

(Anderson  v.  Gray,  134  111.  550  —  25  N.  E.  Eep.  843.) 

By  the  current  of  authority  an  execution  should  follow 

and  conform  to  the  judgment,  yet  an  amendment  may  be 
allowed  if  the  writ  can  be  so  identified  with  the  judgment 
and  the  record  on  which  the  judgment  is  founded  that  the 
court  can  find  data  by  which  to  make  the  amendment.  Tims. 
where  the  execution  is  issued  upon  a  judgment  in  favor  of 
one  in  a  fiduciary  capacity,  recites  a  recovery  by  him  person- 
ally, and  the  record  shows  this  to  be  a  clerical  error  merely, 


252  VOID  JUDICIAL  AXD  EXECUTION   SALES. 

an  amendment  will  be  allowed  as  of  course  and  the  writ 
treated  as  amended  in  the  trial  of  a  writ  of  entry  to  recover 
the  land  sold  on  the  execution. 

(Holmes  v.  Jordan.  163  Mass.  147  —  39  N.  E.  Rep.  1005;  Dewey  v. 
Peeler.  161  Mass.  135  —  36  X.  E.  Eep.  800;  Barnes  v.  Hayes.  1  Swan. 
304.) 

Where  there  was  an  entire  absence  of  any  showing  in 
whose  favor  the  execution  is  issued  it  is  held  to  be  void  be- 
cause wanting-  in  an  essential  and  material  part. 

(Cooper  v.  Jaeobs.  82  Ala.  411  —  2   So.  Rep.   832.) 

As  a  general  rule,  the  mistakes  and  variances  as  to  parties 
and  amount  are  amendable,  and  if  no  amendment  is  made, 
and  no  objection  to  the  form  is  made  by  way  of  motion  to 
quash  or  vacate  the  writ,  it  will  be  treated  as  valid,  unless 
the  variance  is  so  great  that  no  identity  between  it  and  the 
judgment  which  is  produced  in  its  support  exists. 

(Hunt  v.  Loucks,  38  Cal.  372  —  99  Am.  Dec.  404;  Hunter  v.  Roach, 
95  X.  C.  106;  Haskins  v.  Wallet.  63  Tex.  213;  Alexander  v.  Miller,  18 
Tex_  049  _  7n  Am.  Dee.  314:  Harlan  v.  Harlan,  14  Lea,  107;  Wilson  v. 
Campbell,  33  Ala.  249  —  70  Am.  Dec.  586.) 

Execution  not  Under  Seal. 

§  270.  Under  statutes  requiring  all  process  to  be  under 
the  seal  of  the  court  out  of  which  it  emanates,  two  views 
exist  as  to  the  effect  where  a  writ  lacks  the  seal,  the  one 
diametrically  opposed  to  the  other;  thus  it  is  held  that  where 
the  provision  of  statute  in  this  regard  has  been  contravened 
-  de  i-  void  because  the  writ  is  void,  the  statutory  pro- 
vision in  this  regard  being  held  mandatory. 

(Weaver  v.  Tea-ley.  163  111.  251  —  45  X.  E.  Eep.  119;   Mann  v.  Reed, 

49  111.  App.  406;  Taylor  v.  Taylor.  83  X.  C.  116;   Roseman  v.  Miller,  84 

7;  Bybee  v.  Ashby,  2  Gilm.  151  ;  Sidwell  v.  Schumacher,  99  111.  426.) 

On  the  other  hand,  conformable  with  the  just  principle 
prohibiting  the  sacrifice  of  substantial  rights  by  the  sub- 
mission of  substance  to  mere  matters  of  form,  it  has  been 
held  thai  the  omission  of  the  seal  of  the  court  from  the  exe- 
cution is  a  mere  irregularity  rendering  it  voidable  only,  and 

subject  to  rectification  by  amendment  after  levy. 
(Warmouth   v.   Dryden,    125    hid.  355  —  25    X.    E.    Rep.   433;    Ball   v. 
Lachmond,  50  Ark.  113  —  6  S.  W.  Rep.  510;  Taylor  v.  McCourtney,  15 
Neb.    L90       16  N.  \Y.   Rep.  842;   Corwith  v.   Bank,  is  Wis.  560.) 


WRIT  OF  RXECDTTON    MIST  BE  SUFFICIENT   IN  FORM.         253 

Should  Run  in  the  Name  of  the  State. 

§  271.  In  several  states  the  provision  of  law  requiring  all 
process  to  run  in  the  name  of  the  commonwealth  is  held  to  be 
mandatory,  and   its  (.mission   is  considered  of  an  incurable 

(Forbes  v.  Darling,  94  Mich.  621-54  N.  W.  Rep.  385;  McLendon  v. 
State  92  Tenn.  520  —  22  S.  W.  Rep.  200;  People  v.  Henckler,  L37  til. 
580-127  N  E  Rep.  602;  Y/eager  v.  Groves,  78  Ky.  278;  Curtis  v.  Mc- 
Cullough,  3  Nev.  202;  Sims  v.  Bank,  3  W.  Va.  415;  Sidwell  v.  Schu- 
macher. 99   111.  426.) 

This  seems  to  us  to  be  purely  a  sacrifice  of  substance  by  a 
religious  adherence  to  ancient  traditions  and  form,  and  re- 
pugnant to  the  modern  progressive  policy  of  the  law  favoring 
amendment  of  process. 

But  on  the  other  hand,  a  contrary  doctrine  in  this  regard 
has  elsewhere  been  promulgated,  more  in  harmony  with 
reason  and  sound  in  principle,  considering  the  matter  of  style 
but  formal,  which  should  be  preserved  as  such,  for  perpetuat- 
ing the  idea  of  sovereignty,  but  not  being  a  matter  of  sub- 
stance, a  defect  therein  or  its  entire  omission  from  the  pro- 
cess simply  makes  it  voidable.  The  constitutional  provision 
requiring  writs  and  process  to  run  in  the  name  of  the  state  is 
construed  to  be  directory  only. 

(Moore  V.  Fedawa,  13  Neb.  379-14  N.  W.  Rep.  170;  State  v.  Cas- 
sidy  4  S  Dak.  58  —  54  N.  W.  Rep.  928;  Shakman  v.  Schwartz.  89  Wis. 
72  J.61  N  W.  Rep-  309;  Portis  v.  Parker.  8  Tex.  23  —  58  Am.  Dec  95; 
Hansford  v.  Hansford.  34  Mo.  App.  263;  Kahn  V.  Kuhn.  44  Ark.  404; 
Haley  v  Harris.  10  Wis.  95;  State  v.  Foster,  61  Mo.  549;  Hibbard  v. 
Smith  50  Cal.  511;  Doan  v.  Baley,  38  Mo.  449;  Thompson  v.  Bickford, 
19  Minn.  17;  Hanna  v.  Russel,  12  Minn.  80:  Carnahan  v.  Pell,  4  Colo. 
190.) 

Essential  Recitals  in  the  Writ. 

§  272.  In  the  matter  of  variance  between  the  execution 
and  the  judgment  the  paramount  and  real  question  is  that 
of  identity.  Accordingly,  if  from  the  face  of  the  writ,  con- 
sidered in  connection  with  other  facts  which  environ  the 
transaction,  it  sufficiently  appears  that  the  object  of  the  writ 
is  the  enforcement  of  the  particular  judgment  in  the  action, 
this  manifestly  should  be  Biifficieni  to  sustain  it,  while  all 
other  variances  are  immaterial  and  should  not  be  regarded  as 
matters  of  any  considerable  gravity.     When  the  writ  sub- 


254  VOID  JUDICIAL  AND  EXECUTION   SALES. 

stantially  conforms  to  the  judgment  it  is  sufficient  upon  col- 
lateral assault,  though  subject  to  amendment  if  questioned 
in  time ; 

(Hobson  v.  McCambridge,   130  111.  367  —  22  X.  E.  Rep.   823;   Harlan 
v.  Harlan.  14  Lea.  107;  Taney  v.  Woodmansee,  23  W.  Va.  709.) 

while  if  the  departure  is  to  the  extent  that  it  renders  identifi- 
cation or  connection  between  the  judgment  and  the  execution 
a  matter  of  doubt,  then  the  latter  is  unquestionably  void  and 
will  not  sustain  a  sale. 

(De  Loach  v.  Robbins,  102  Ala.  288  —  14  So.  Rep.  777;  Sprott  v.  Reid. 
3  G.  Greene,  489.) 

Thus,  when  the  execution  fails  to  show  on  its  face  upon 
whose  property  it  is  to  be  levied, 

(Douglass  v.  Whiting,  28  111.  362.) 
or  contains  no  recitation  in  whose  favor  it  was  issued  or  on 
what  judgment  it  is  founded  or  from  what  court  it  emanated, 
it  is  in  contemplation  of  law,  by  reason  of  the  defects,  no 
execution ; 

(Brown  v.  Duncan,  132  111.  413  —  23  X.  E.  Rep.   1126.) 

and  when  it  purports  upon  its  face  to  emanate  from  a  tri- 
bunal having  no  legal  existence  it  is  also  void. 

(Chesebro  v.  Barme,  163  Mass.  79  —  39  X.  E.  Rep.  1033;  Palmer  v. 
Crosby,   11  Gray,  46.) 

Nor  are  inherent  defects  in  the  writ  cured  by  indorse- 
ments thereon. 

(Cooper  v.  Jacobs,  82  Ala.  411  —  2  So.  Rep.   S32.) 

But  identification  of  the  judgment  being  apparent,  a  vari- 
ance by  reason  of  a  mere  discrepancy  in  the  date, 

I  Franklin  v.  Merida,  50  Cal.  2S9 ;  Daily  v.  State.  56  .Miss.  475;  Xims 
v.  Spurr,  138  Mass.  209;  Davis  v.  Kline,  76  Mo.  310;  Mills  v.  Lombard, 
32  Minn.  259  —  20  X.  W.  Rep.  187;  Swift  v.  Agnes,  33  Wis.  22S;  Alex- 
ander v.  Miller,  IS  Tex.  893  —  70  Am.  Dec.  314;  Bank  v.  Whitehall.  13 
Vt.  395  —  37  Am.  Dec.  600;  Leibig  v.  Rawson.  1  Scam.  272  —  29  Am. 
Dee.  354:  Stewart  v.  Severance,  43  Mo.  322  —  97  Am.  Dec.  392.) 

or  an  error  in  the  caption  by  stating  the  wrong  county, 

i  Davis  v.   Davis,  2  Gratt.  363.) 
are  but  irregularities  capable  of  being  amended. 

While  the  writ  should  always  be  directed  to  the  proper 
officer,  yet  if  it  is  not  so  directed  and  a  levy  is  in  fact  made 


WRIT  OF  EXECUTION'  MUST  BE  SUFFICIENT  IN  FORM.         2-">5 

by  the  officer  to  whom  it  should  have  been  directed,  the  mis- 
direction is  a  harmless  error,  amendable  before  sale,  and 
having-  no  effect  upon  the  validity  of  the  sale  or  levy  when 
once  consummated. 

(Pecotte  v.  Oliver.  2  Idaho,  230  —  10  Pac.  Rep.  302;  Van  Cleave  v. 
Buchcv.  79  Cal.  600  —  21  Pac.  Rep.  954:  Hibbard  v.  Smith,  no  Cal.  511; 
Bank  v.  Franklin,  20  Kan.  264;   Walden  v.   Davison,   15  Wend.  575.) 

Nor  will  a  mistake  in  the  execution  of  the  name  of  the 
judgment  creditor,  and  in  the  notice  of  sale  be  sufficient  to 
avoid  the  sale  when  the  judgment  is  otherwise  correctly 
described. 

(Griffith  v.  Harvester  Co.,  92  Iowa.  634  —  61  N.  W.  Rep.  243.) 

In  Texas  it  lias  been  held  that  a  sale  of  land  made  by  a 
sheriff  of  one  county,  under  a  venditioni  exponas  issued  and 
directed  to  the  sheriff  of  another  county,  is  a  nullity. 

(Terry  V.  Cutler,  39  S.  W.  Rep.  152  —  23  S.  W.   Rep.  539.) 

That  the  execution  was  made  returnable  in  a  period  less 
than  that  by  law  provided  was  held  fatal,  the  writ  being  void 
and  no  justification  to  the  officer  for  seizing  and  selling  prop- 
erty thereunder, 

(Fifield  v.  Richardson,  34  Vt.  410;  Bond  v.  Wilder.   16  Vt.  393.) 

though  an  omission  to  recite  the  term  at  which  the  judgment 

was  obtained, 

(Lewis  v.  Morrow,  98  Mo.  174  - 1  S.  W.  Rep.  93 ;  Drawdy  v.  Lillifield, 
75  Ga.    215.) 

or  is  directed  against  the  wife  alone  upon  a  judgment  against 
herself  and  husband  jointly, 

(In  re  First  National  Bank.  49  Fed.  Rep.  120.) 
or  an  entire  omission  of  the  name  of  the  county  from  wdiich 
the  writ  was  issued. 

(Elliott  v.  Hart,  45  Mich.   234  —  7  N.  W.  Rep.   812.) 
or  the  omission  of  the  signature  of  the  clerk  to  the  writ  issued 
by  him,  or  the  name  of  another  person  inadvertently  at- 
tached, 

(Jett  v.  Shinn,  47  Ark.  373  —  1  S.  W.  Rep.  693.) 
are  all  held  to  be  mere  irregularities  or  clerical  errors  in  form 
but  not  defects  in  substance,  and  when  collaterally  questioned 
therefor  will  be  treated  as  amended. 


256  VOID  JUDICIAL  AND   EXECUTION   SALES. 


LIMITATIONS  UPON  ISSUANCE  OF  EXECUTION. 

At  Common  Law. 

§  273.  Under  the  common  law  the  issuance  of  an  execution 
within  a  year  and  a  day  after  the  entry  of  the  judgment  in 
a  personal  action  was  an  imperative  requisite  for  the  preser- 
vation of  the  efficacy  of  the  judgment.  A  dormant  judg- 
ment was  the  inevitable  consequence  of  a  failure  to  attempt 
to  enforce  it  within  that  time,  and  thereafter  no  writ  could 
issue  until  scire  facias  was  sued  out  by  the  plaintiff  and 
judgment  for  the  issuance  of  execution  obtained  upon  it. 
The  reason  for  this  rule  was,  that  by  the  failure  to  enforce 
the  judgment  for  such  a  long  time  the  presumption  of  release 
or  satisfaction  was  raised,  and  hence  the  defendant  is  not  to 
be  harassed  or  disturbed  thereafter  by  another  writ  without 
a  proper  opportunity  of  showing  his  reasons,  if  any  he  has, 
why  execution  should  not  issue.  To  give  the  judgment 
debtor  such  opportunity  is  the  only  legitimate  purpose  of  the 
writ  of  scire  facias. 

(Bowar  v.  Railway  Co..  136  111.  101  —  26  N.  E.  Rep.  702:  Wilson  v. 
Trustees,  13S  111.  2S5  —  27  N.  E.  Rep.  1103;  Ingraham  v.  Champion.  s4 
Wis.  235  —  54  X.  W.  Rep.  39S;  McRoberts  v.  Lyon,  79  Mich.  25  —  44 
X.  W.  Rep.  160.) 

But  a  writ  issued  in  violation  of  this  rule  is  not  a  nullity, 
according  to  some  authorities, 
(Riddle  v.  Turner,  52  Tex.  145.) 

while  others  hold  it  void  as  to  the  plaintiff  who  acquires  no 
title  under  a  sale  thereunder. 

(Godbold  v.  Lambert.  S  Rich.  Eq.  155  —  70  Am.  Dec.  192;  Haskins  v. 
Helm.  4  Litt.  309  —  14  Am.  Dee.  133.) 

Under  the  Statutes. 

§  274.  Under  some  statutes  the  judgment  creditor's  right 
to  an  execution  does  not  exist  immediately  upon  the  entry  of 
the  judgment;  it  is  only  after  the  expiration  of  a  specified 
period  that  he  is  entitled  to  have  the  writ  issued.  As  to  what 
the  consequences  are  when  the  writ  has  issued  in  contraven- 
tion of  the  statute  in  this  regard,  the  authorities  are  not 
agreed.  Thus  in  Massachusetts  it  is  held  that  it  is  void  and 
the  sale  thereunder  a  nullity. 

(Penniman  v.  Cole.  8  -Mi  t.  496.) 


LIMITATIONS    UPON    ISSUANCE    OF   EXECUTION. 

Bui  pursuant  to  the  great  weight  of  authority  a  writ  thus 
issued  in  violation  of  the  statute  is  irregular  merely,  and 
while  erroneous  and  subject  to  being  vacated  by  reason 
thereof  by  some  proceeding  prescribed  by  law,  must  never- 
theless be  respected  and  may  be  enforced,  until  it  is  vacated. 

(Scribner  v.  Whitcher,  9  X.  II.  63  —  23  Am.  Dec.  70S;  Stewart  v. 
Stoker,  13  S.  &  R.  199—15  Am.  Dec.  589;  Miller  v.  O'Hannon.  4  Lea, 
398;  Stanley  v.  Nelson,  4  Humph.  4S3;  Wilkinson's  Appeal,  65  Pa.  St. 
190;  Carpenter  v.  Bank.  1  Lea,  202;  Dawson  v.  Daniel,  2  Flip.  305; 
Rosenfeld  v.  Palmer,  5  Daly,  318;  Bacon  v.  Cropsey.  7  N.  Y.  199.) 

In  some  states,  after  the  period  for  issuing  execution  has 
expired,  it  can  only  issue  upon  the  order  of  the  court,  upon 
motion  therefor,  and  usually  upon  proof  that  the  judgment 
is  still  unsatisfied,  notwithstanding  the  limitation. 

(Pursel  v.  Deal,  16  Ore.  295  —  18  Pac.  Rep.  461.) 

So  at  common  law,  after  the  issuance  and  return  of  the 
original  execution,  the  plaintiff  might  have  an  alias  writ 
issued,  and  subsequent  to  this  pluries  writs  could  be  issued 
for  the  enforcement  of  the  judgment. 

In  some  states  general  provisions  of  statute  exist  providing 
for  the  issuance  of  these  writs,  but  in  the  absence  of  statute 
the  right  and  propriety  of  issuing  them  is  unquestioned 
under  the  common  law  prevailing  in  the  absence  of  express 
legislative  enactment.  Sales  based  upon  such  writs  are 
therefore  as  valid  and  regular  as  those  founded  upon  the 
original  execution. 

(Clark  v.  Reiniger,  66  Iowa.  507  —  24  X.  W.  Rep.  16;  Walter  v.  Green- 
wood, 29  Minn.  S7  — 12  X.  W.  Rep.  145;  Yetzer  v.  Young,  3  S.  Dak. 
263—52  X.  W.   Rep.   1054.) 

An  execution  issued  while  another  is  still  outstanding  is 
an  irregularity,  but  it  is  not  for  that  reason  a  nullity,  and 
the  sale  thereunder  is  not  void.  If  there  has  been  a  levy 
made  under  the  outstanding  writ,  the  alias  writ  issued  before 
such  levy  is  legally  disposed  of,  is  irregular  and  voidable, 
and  may  be  vacated  upon  motion  before  but  not  after  the 
property  is  sold. 

(Atwood  V.  Bearss,  45  Mich.  469  —  8  X.  W.  Rep.  55;  Richer  v.  Mer- 
ritt,  10S  Ind.  347  —  99  X.  E.  Rep.  368;  Mace  v.  Dutton.  2  Ind.  309  —  52 
Am.  Dec  510;  West  v.  St.  John,  63  Iowa,  2S7  —  19  X.  W.  Rep.  238; 
State  v.  Page,  1  Spear,  408  —  40  Am.  Dec.  608;  Kerr  v.  Commonwealth. 
8  Biss.  276.) 

17 


258  VOID  JUDICIAL  AXD  EXECUTION   SALES. 

If  two  executions  are  issued  at  the  same  time  upon  the 
same  judgment  to  different  counties  it  is  an  irregularity 
merely,  and  a  sale  under  either  of  them  is  voidable  but  not 
void. 

(At wood  v.  Bearss,  45  Mich.  469  —  S  N.  W.  Rep,  55.) 

Issuance  Pending  Stay  of  Proceedings. 

§  275.  As  in  almost  all  cases  of  irregular  executions,  when 
the  proceedings  have  been  stayed  by  a  supersedeas  bond, 
there  is  a  conflict  of  authority  as  to  whether  or  not  a  sale 
under  a  writ  erroneously  issued  in  violation  of  the  sale  is 
roid  or  only  voidable.  Thus,  in  Nebraska  and  Pennsylvania 
it  is  held  that  when  the  proceedings  are  stayed  no  execution 
can  lawfully  issue  during  the  time  of  such  stay,  and  a  sale 
under  an  execution  issued  in  violation  of  the  supersedeas 
bond  is  void,  passing  no  title  or  right  to  the  property  as 
against  the  owner,  because  for  the  time  being  the  court  was 
without  power  to  issue  the  writ  which  is  void  in  consequence 
thereof. 

(Bank  v.  Green,  10  Neb.  130  —  4  N.  W.  Rep.  942;  State  Bank  v. 
Green,  S  Neb.  297;  Milliken  v.  Brown,  10  S.  &  R.  188.) 

While  on  the  other  hand  other  cases  assert  that  the  exe- 
cution, though  having  been  erroneously  issued,  remains  in 
force  until  the  error  is  corrected  in  some  authorized  manner. 

(Shirk  V.  Railway  Co..  110  111.  661;  Oakes  v.  Williams,  107  111.  154; 
Swigart  v.  Harber,  4  Scam.  364  —  39  Am.  Dec.   41S.) 

CONSEQUENCES  OF  THE  PREMATURE  ISSUANCE 
OF  EXECUTION. 

Issued  in  Violation  of  Statutory  Inhibition. 

§  276.  In  several  of  the  states  statutes  have  been  enacted 
prohibiting  the  issuing  of  execution  until  after  the  expira- 
tion of  a  specified  period  of  time  after  the  entry  of  judg- 
ment. Should  however  the  writ  issue  in  contravention  of 
this  inhibition,  we  are  confronted  with  a  question  whereon 
mthorities  are  not  entirely  harmonious.  The  contention 
of  some  being  to  the  effect  that  such  a  writ  is  void  if  a  levy 
thereunder  is  made  before  the  time  has  expired  wherein  the 
writ  shall  no1  issue,  and  the  writ  and  levy  being  void,  the 
.  de  is  also  void. 

(Penniman  v.  Cole,  8- Met.  496.) 


CONSEQUENCES    OF    PREMATURE    ISSUANCE    OF    EXECUTION.    2o9 

Other  adjudications  are  to  the  effect  that  where  the  writ 
is  prematurely  issued,  but  no  levy  or  seizure  is  attempted 
thereunder  until  after  the  time  has  arrived  when  it  might 
legally  issue,  it  is  not  void  and  the  proceedings  are  valid, 
upon  the  general  principle  that  the  judgment  having  been 
obtained  in  a  competent  court  having  acquired  jurisdiction 
to  render  it,  the  improper  issuing  of  execution  to  enforce  it, 
like  an  imperfection  in  the  document  itself,  is  but  a  mere 
irregularity  of  insufficient  moment  to  make  the  writ  and 
proceedings  thereunder  void  upon  collateral  attack. 

(Scribner  v.  Whiteher,  6  N.  H.  63  —  23  Am.  Dec.  70S;  Stewart  v. 
Stoker,  13  S.  &  E.  199  —  15  Am.  Dec.  5S9;  Lov<rgrove  v.  Brown,  GO  Me. 
592.) 

Upon  timely  motion  being  interposed  by  either  party,  such 
a  writ  may  be  amended  or  vacated,  just  as  the  exigencies  of 
the  case  may  require  or  justice  demand,  but  if  not  vacated  or 
suspended,  the  writ  and  sale  will  be  sufficient. 

(Waldrop  v.  Feidman,  90  Ala.  157  —  7  So.  Rep.  510;  Stotts  v.  Brook- 
field.  55  Ark.  307  —  18  S.  W.  Rep.  179;  Bowar  v.  Railway  Co.,  136  111. 
101  —  26  X.  E.  Rep.  702;  Levan  v.  Milholland,  114  Pa.  St.  49  —  7  All. 
Rep.  194;  Morgan  v.  Evans,  72  111.  586  —  22  Am.  Rep.  154;  Rammel  v. 
Watson.  2  Vioom,  281;  Bryant  v.  Johnson,  24  Me.  304;  Scribner  v. 
Whiteher,  6  X.  H.  63  —  23  Am.  Dec.  708;  Wilkinson's  Appeal,  65  Pa. 
St.  190;  Cowan  v.  Lowry,  7  Lea,  620;  Stanley  v.  Xelson,  4  Humph.  483; 
Carpenter  v.  Bank,  1  Lea,  202.) 

A  similar  rule  is  applicable  to  writs  issued  in  violation  of 
a  stay  order,  or  contrary  to  agreement,  which  in  either  case 
would  amount  to  nothing  more  than  an  irregularity,  and  the 
execution  having  issued  erroneously  will  be  set  aside  by  the 
court  upon  defendant's  application,  but  until  then  it  will  be 
treated  as  valid.  Xo  one  but  the  defendant  can  object  to  an 
irregularity  of  this  nature.  If  he  acquiesces  all  the  world 
is  deemed  to  consent. 

(Beebe  v.  United  States.  161  U.  S.  104  —  16  Sup.  Ct.  Rep.  532;  llan- 
ika's  Estate,  138  Pa.  St.  330  —  22  Atl.  Rep.  90;  Railway  Co.  v.  Brooks. 
90  Tenn.  161  —  16  S.  W.  Rep.  77;  Levan  v.  Milholland,  114  Pa.  St,  49  — 
7  Atl.  Rep.  194;  Sheetz  v.  Wynkoop,  74  Pa.  St.  19S;  Lynch  v.  Kelly,  41 
Cal.  232;  Stewart  v.  Stoker,  13  W.  &  S.  199  —  15  Am.  Dec.  589.) 

In  cases  of  the  irregular  issuing  of  an  execution  against 
the  express  provisions  of  statute,  there  is  no  writ  of  error, 
but  the  remedy  of  the  injured  party  is  either  by  motion  in  the 


260  VOID  JUDICIAL  AND  EXECUTION  SALES. 

original  case  to  vacate  the  writ,  or  by  proceedings  in  equity 
under  certain  circumstances.  Under  the  common  law  sys- 
tem of  procedure,  the  employment  of  the  writ  of  audita 
querela  accomplished  the  purpose.  In  some  of  the  states 
this  writ  is  still  recognized,  among  them  Massachusetts, 
Maine  and  Vermont,  where  the  old,  or  a  modification  of  the 
old,  system  of  procedure  still  obtains. 

(Badcliffe  v.  Barton,  161  Mass.  327  —  37  N.  E.  Eep.  373;  Foss  v. 
Witham,  91  Mass.  572;  Alexander  v.  Abbott,  21  Vt.  476;  Bryant  v. 
Johnson,  24  Me.  304;  Folan  v.  Folan,  59  Me.  566;  Dingman  v.  Myers,  13 
Gray,  1.) 

But  under  the  reformed  system  of  procedure  the  writ  has 
been  wholly  superseded  by  motion,  or  by  petition  or  complaint 
in  the  nature  of  a  supplemental  pleading. 

(Gaynor  v.  Blewett,  So  Wis.  155  —  55  N.  W.  Rep.  169;  McDonald  v. 
Falvey,    18    Wis.    571.) 

Judgment  Must  Have  Been  Rendered  Before  the  Writ   can 
Issue. 

§  277.  If  the  court  has  rendered  or  pronounced  judgment, 
though  there  has  been  no  entry  thereof,  the  issuance  of  exe- 
cution has  been  held  to  be  merely  an  error,  and  the  court  had 
power  to  order  an  entry  of  the  judgment  as  of  the  date  of 
rendition,  for  the  purpose  of  supporting  the  proceedings  had 
under  the  writ  issued  thereon  before  its  actual  entry  by  the 
clerk;  and  when  so  entered  nunc  pro  tune,  it  constitutes  a 
complete  validation  of  the  writ  and  all  subsequent  proceed- 
ings, as  between  the  original  parties  at  least. 

(Jones  v.  Iron  Co..  95  Ala.  551  — 10  So.  Eep.  635;  Lowenstein  v. 
Caruth,  59  Ark.  4SS  — 2S  S.  W.  Eep.  421;  Graham  v.  Lynn,  4  B.  Mon. 
17  —  39  Am.  Dec.  493;  Chichester  v.  Candle.  3  Cow.  39  — 15  Am.  Dec. 
23S;  Nabers  v.  Meredith,  (IT  Ala.  333;  Jordan  v.   Petty,  5  Fla.  326.) 

However,  the  entry  of  judgment  in  this  manner  will  not  be 
permitted  to  the  prejudice  of  the  rights  of  third  parties  whose 
interests  were  acquired  without  notice  of  the  rendition  of  any 
judgment  in  the  first  instance,  being  limited  to  the  subser- 
vience of  the  interests  of  the  original  parties  when  no  conflici 
is  caused  with  the  interests  of  any  third  party. 

(Ninde  v.  Clarke,  62  Midi.  124  —  28  X.  W.  Rep.  7''.:.:  Vocalian  Co. 
v.  Music  Co.,  45  S.  C.  11  —  22  S.  E.  Rep.  755;  Wooters  v.  Joseph,  137 
111.  113  —  27  N.  E.  Eep.  SO;  Galpin  v.  Fishburn,  3  McCord,  22  —  15  Am. 


CONSEQUENCES    OF    PREMATURE    ISSUANCE    OF    EXECUTION.    261 

Dec.  614:  Smith  v.  Hood,  25  Pa.  St.  218  —  64  Am.  Dec.  692;  Koch  v. 
Railway  Co.,  77  Mo.  354;   Hay  v.  Miller,  1  Wash.  Ter.  163.) 

But  when  the  only  evidence  of  judgment  is  embodied  in  the 
minutes  or  memoranda  entered  upon  books  not  intended  for 
the  preservation  of  the  record  of  judgment,  these  do  not  con- 
stitute a  judgment, 

(Trear  v.  Witham,  56  Iowa,  443  —  9  N.  W.  Rep  339;  Balm  v.  Nunn, 
63  Iowa.  641  —  19  N.  W.  Rep.  810;  Case  v.  Plato,  54  Iowa.  64  —  6  N.  W. 
Rep.    128.) 

and  therefore  the  issue  and  levy  of  an  execution  before  the 
rendition  of  the  judgment  is  wholly  void,  and  the  subsequent 
rendition  of  the  judgment  and  its  entry  in  due  form  of  law 
will  not  validate  the  writ  or  the  proceedings  had  thereunder 
in  the  least  degree.  Without  a  judgment  absolutely  no  foun- 
dation exists  for  the  writ.  Hence,  the  judgment  must  at 
lease  have  been  pronounced,  even  if  it  is  not  entered,  to  give 
any  validity  to  the  writ.  Consequently  it  is  axiomatic  that  an 
execution  issued  upon  a  mere  prospective  judgment  —  one 
anticipated  but  net  yet  rendered  —  is  unqualifiedly  void. 
And  by  analogy,  there  being  nothing  to  give  the  writ  the 
least  validity,  it  is  not  susceptible  of  validation  by  subse- 
quently rendering  and  entering  the  judgment  in  anticipation 
of  which  the  execution  was  issued. 

(Winter  v.  Coulthard,  94  Iowa,  312  —  62  N.  W.  Rep.  732.) 

Pursuant  to  this  principle,  to  support  the  issuance  of  an 
execution  the  transcript  of  judgment  from  the  justice's  court 
must  be  filed  at  least  in  substantial  compliance  with  the  re- 
quirements of  the  statute,  or  else  the  writ  is  void  and  no  title 
can  be  passed  by  the  proceedings  of  sale  thereunder. 

(Hobson  v.  McCambridge,  130  111.  367  —  22  N.  E.  Rep.  S32;  Bigalow 
oth.  39  Mich.  622.) 

When  Advantage  Must  be  Taken  of  Premature  Issuance  of 
Writ. 

§  278.  Nothing  further  appearing,  an  execution  prema- 
turely issued  will  be  quashed  ordinarily  upon  motion  being 
promptly  interposed,  and  not  being  a  nullity  ah  initio,  will 
support  subsequent  proceedings  unless  assailed  within  due 
season  by  the  defendant,  who  is  the  only  party  competent  to 
urge  objections  upon  this  ground,  and  even  he  is  not  permitted 
to  do  so  in  a  collateral  way. 


262  VOID  JUDICIAL  AND  EXECUTION  SALES. 

(Hanika's  Estate,  13S  Pa.  St.  330  —  22  Atl.  Rep.  90;  Allen  v.  Stage 
Co.,  8  Greenl.  207;  Blashfield  v.  Smith,  27  Hun,  114;  Shyroek  v.  Buck- 
man.  121  Pa.  St.  248  —  15  Atl.  Rep.  4S0;  Lynch  v.  Kelly,  41  Cal.  232; 
Bacon  v.  Cropsey,  7  N.  Y.   195.) 

It  is  a  fundamental  principle  that  every  court  has  control 
of  its  own  process,  and  jurisdiction  to  prevent  or  redress  abuse 
thereof,  by  entertaining  proceedings  by  motion  to  that  effect. 
and  in  accordance  with  this  rule  the  motion  must  be  inter- 
posed in  convenient  time, 

(Malloy  v.  Batchellcr,  69  Mo.  503;  Hanika's  Estate,  138  Pa.  St.  330  — 
22  Atl.  Rep.  90;  Kinaley  v.  Stead,  55  Mo.  App.  176;  McKinneys  v.  Scot-t, 
1  Bibb,   155.) 

before  its  functions  have  been  performed, 

(Martin  v.  Rice,  16  Tex.  157;  Scott  v.  Allen,  1  Tex.  508;  Sturgis  V. 
Reed,  2  Me.   109.) 

and  prior  to  the  payment  of  the  purchase  money, 

(Waters   v.    Peach,   3   Gill   &   J,    408.) 

if  the  process  under  consideration  be  an  execution,  it  may  be 
quashed,  if  prematurely  issued. 

But  it  is  too  late  to  seek  to  quash  it  if  the  motion  is  not  in- 
terposed until  after  the  return  of  sale,  for  in  conformity  with 
the  general  rule  application  to  vacate  proceedings  under  void- 
able process  must  be  made  seasonably,  or  the  error  will  be  con- 
sidered waived; 

(Meader  Co.  v.  Aringdale.  5S  Tex.  447;  Gilmer  v.  Bird,  17  Fla.  410; 
Wibright  v.  Wise,  4  Blatchf.  137;  Branch  v.  Branch,  6  Fla.  314.) 

and  a  similar  rule  prevails  where  a  direct  action  is  instituted 
to  accomplish  the  same  purpose. 

(Ponder    v.    Cheeves,    90    Ala.    117  —  7    So.    Rep.    512.) 

EXECUTION   ISSUED   AFTER   DEATH   OF   JUDG- 
MENT DEBTOR 

In  Proceedings  in  the  Nature  of  in  rem. 

§  279.  The  statute  of  limitations  affecting  judgments  may 
not  have  run  against  it  as  a  bar,  and  yet  the  right  to  sue  out 
an  execution  may  be  suspended  by  the  death  of  the  sole  judg- 
ment debtor.  This  period  of  suspension  ordinarily  continues 
until  a  revival  of  the  judgment  by  scire  facias,  where  the 
common  law  rule  of  procedure  prevails,  or  by  some  other  ap- 
propriate procedure  provided  by  statute  to  the  same  effect 


EXECUTION    ISSUED    AFTER    DEATH    OF    JUDGMENT    DEBTOR.    263 

where  the  old  method  has  been  supplanted  by  the  new  pro- 
cedure. 

According  to  the  weight  of  authority  the  principle  of  re- 
vivor, or  rule  of  suspension  by  reason  of  the  death  of  the  sole 
judgment  defendant  is  applicable  only  to  ordinary  money 
judgments,  and  not  to  judgments  directing  the  sale  of  specific 
property,  such  as  in  the  foreclosure  of  mortgage  or  other  stat- 
utory liens,  as  these  are  proceedings  operating  in  rem,  and 
therefore  no  occasion  is  presented  for  the  application  of  the 
rule. 

(Kellogg  v.  Tout,  65  Ind.  151;  Hays  v.  Thomas,  56  X.  Y.  521;  Har- 
rison v.   Simons,   3  Edw.  Ch.   394.) 

Though  it  is  held  in  Iowa  in  a  comparatively  late  case  that 
the  rule  is  applicable  to  proceedings  in  rem  as  well  as  to  those 
in  personam. 

(Bull  v.   Gilbert,   79  Iowa,   547  —  44  N.  W.   Rep.   S15.) 

Consequences  of  Issuance  after  Death  of  Sole  Defendant. 

§  280.  There  is  considerable  conflict  among  the  adjudged 
cases  as  to  the  effect  of  the  issuance  of  an  execution  after  the 
death  of  the  sole  defendant,  and  before  revivor.  Pursuant  to 
a  line  of  decisions  maintaining  that  the  death  of  the  judg- 
ment defendant  terminates  the  power  to  issue  the  writ,  but 
having  once  issued,  and  being  otherwise  sufficient,  it  is  not 
unconditionally  void,  but  voidable  merely,  a  sale  of  prop- 
erty thereunder  will  vest  a  good  title  in  the  purchaser. 

(Hodges  v.  White,  19  R.  I.  717  — 3S  Atl.  Rep.  838;  Hodge  v.  Mitchell, 
27  Miss.  560  —  61  Am.  Dec.  524;  Elliott  v.  Knott,  14  Md.  121  —  74  Am. 
Dec.  519;  Harrington  v.  O'Reilly,  9  S.  &  M.  216  — 5S  Am.  Dec.  704; 
Shelton  v.  Hamilton,  23  Miss.  496  —  57  Am.  Dec.  149 ;  Speer  v.  Sample, 
4  Watts,  367;  Butler  v.  Haynes,  3  N.  H.  21.) 

But  on  the  other  hand  there  is  a  decided  preponderance  of 
authority  maintaining  the  seemingly  less  tenable  doctrine 
that  the  issuance  of  execution  after  the  death  of  the  sole  judg- 
ment defendant,  without  proceedings  in  revivor,  is  unalter- 
ably void,  and  all  subsequent  proceedings  thereunder  uncon- 
ditional nullities,  incapable  of  conferring  either  rights  or  title 
to  the  property  ostensibly  sold,  and  subject  to  collateral 
assault. 

(Prentis  v.  Bowden,  145  N.  Y.  342  —  40  X.  E.  Rep.  13;  Hooper  v. 
Caruthers,   78  Tex.  432  —  15   S.  W.   Rep.   9S;    Barheld  v.   Barfield,    113 


264  VOID  JUDICIAL  AND  EXECUTION  SALES. 

N.  C.  230  —  18  S.  E.  Rep.  505;  Faison  v.  Johnson,  70  Miss.  214  —  12  So. 
Rep.  152;  Bull  v.  Gilbert.  79  Iowa,  547  —  44  X.  W.  Rep.  815;  Boyle  v. 
Maroney,  73  Iowa,  70  —  35  X.  W.  Rep.  145;  Bynum  v.  Govan,  8  Tex. 
Civ.  App.  559  —  29  S.  W.  Rep.  1119;  Xorthcraft  v.  Oliver,  74  Tex.  162  — 
11  S.  W.  Rep.  1121;  Wallace  v.  Swinton,  64  X.  Y.  188;  Welch  v.  Battern. 
47  Iowa,  147;  Myer  v.  Hearst,  75  Ala.  390;  Meyer  v.  Mintoyne,  10G  111. 
414;  Whitlock  v.  Whitlock,  25  Ala.  543;  Houston  v.  Childers,  24  La.  Ann. 
472;  Beach  v.  Dennis,  47  Ala.  262;  Clingman  v.  Hopkie,  78  111.  152;  Wil- 
liams v.  Weaver,  94  X.  C.  134;  Smith  v.  Reed,  52  Cal.  345;  Cunningham 
v.  Bnrk,  45  Ark.  267;  State  v.  Michaels,  S  Blatchf.  436;  Mitchell  v. 
St.  Maxent,  4  Wall.  237;  Puckett  v.  Richardson,  6  Lea,  49;  Givin  v. 
Latimer,  4  Yerg.  22.) 

In  Minnesota  it  is  held  that  the  rig'ht  extended  under  the 
law  to  a  judgment  creditor  to  enforce  a  money  judgment  by 
execution  issued  after  the  death  of  the  judgment  debtor  is 
limited  to  the  property  upon  which  the  judgment  constituted 
a  lien  prior  to  the  death  of  the  debtor. 

(Byrnes  v.  Sexton,   62  Minn.   135  —  64  X.  W.   Rep.   155.) 

Death  of  One  only  of  Several  Defendants. 

§  281.  Where  there  are  several  judgment  defendants  and 
one  or  more  die,  execution  may  nevertheless  be  issued  at  any 
time  against  all  of  the  defendants  without  a  revivor,  if  the 
property  of  the  surviving  judgment  debtors  only  is  sought  to 
be  subjected  toward  the  satisfaction  of  the  judgment,  as  this 
is  not  considered  as  joint  and  several,  but  the  estate  of  the 
deceased  debtor  can  not  be  thus  reached.  Proceedings  as  to 
the  estate  of  such  a  decedent  in  the  absence  of  a  revivor  are 
considered  as  void  in  some  states  and  voidable  only  in  others. 
In  any  event  the  death  should  be  suggested  in  the  writ. 

(Barrett  v.  Furnish,  21  Ore.  17  —  26  Pac.  Rep.  861;  Coffin  v.  Freeman. 
6  I  Me.  535  —  24  Atl.  Rep.  986;  Thompson  v.  Bondurant,  15  Ala.  346  — 
50  Am.  Dec.  136;  Day  v.  Rice,  19  Wend.  644;  Hildrith  v.  Thompson,  16 
Mass.  193;  Dickinson  v.  Bowers,  7  Baxt.  307;  Reed  v.  Garfield,  15  111. 
App.  290;  Holt  v.  Lynch,  IS  W.  Va.  567;   Payne  v.  Payne,  S  B.  Mon. 

.:  Fabel  v.  Boykin,  55  Ala.  383;  Wade  v.  Xatt,  41  Miss.  248;  Howell 
v.  Endridge,  21  Wend.  678;  Martin  v.  Bank.  15  Ala.  594—50  Am.  Dec. 
1-17:  Blanks  v.  Rector,  24  Ark.  496  —  88  Am.  Dec.  780;  Christ  v. 
Flanagan,  23  Colo.  140  —  46  Pac  Rep.  683.) 

Issued  Before  but  Sale  after  Death  of  Judgment  Debtor. 

§  282.  If  the  execution  was  issued  after,  but  bears  teste 
before  the  death  of  the  sole  judgment  debtor,  a  levy  and  sale 
made  under  such  writ,  after  his  death,  without  revivor,  is 


EXECUTION  AFTEE  DEATH  OF  SOLE  JUDGMENT  CEEDITOR. 


265 


valid  and  a  perfect  title  will  inure  to  the  purchaser  at  the 

sale. 

(Montgomery  v.  Realhafer,  S5  Tenn.  668  —  5  S.  W.  Rep.  54.) 

And  if  the  writ  issue  during  the  lifetime  of  the  judgment 
debtor,  a  sale  may  be  lawfully  consummated  after  his  death, 

(Barrett  v.  Furnish,  21  Ore.  17-26  Pac.  Rep.  861;  Collin  v.  Freeman, 
84  Me.  535  —  24  Atl.  Rep.  896.) 

though  a  rule  at  variance  with  this  seems  to  obtain  in  the 
federal  court,  where  a  revivor  by  scire  facias  is  necessary 
where  the  original  defendant  dies  between  the  date  of  the  levy 
and  the  date  of  the  deed  under  the  execution  sale. 
(United    Slates   v.    Ilsley,    49    Fed.    Rep.    776.) 

But  if  the  writ  is  issued  and  bears  teste,  after  the  death  of 
a  sole  defendant,  it  is  adjudged  void  by  the  weight  of  au- 
thority, 

(Burcre  v.  Brown,  5  Bush,  535-96  Am.  Dee.  369;  Montgomery  v. 
Realhafer,  85  Tenn.  668-5  S.  W.  Rep.  54;  Collier  v.  Widham,  27 
Ala.    291  —  62    Am.    Dec.    767.) 

though  there  are  other  cases  holding  writs  so  issued  to  be 
voidable  only,  and  not  altogether  void. 

(Shelton  v.  Hamilton,  23  Miss.  496-57  Am.  Dec.  149;  Elliott  v. 
Knott,   14  Md.   121  —  74  Am.   Dec.   519.) 

EFFECT    OF   ISSUANCE    OF   EXECUTION    AFTER 
DEATH  OF  SOLE  JUDGMENT  CREDITOR 

Makes  Writ  at  least  Irregular. 

§  283.  It  may  be  laid  down  as  a  general  rule  that,  in  the 
absence  of  statute  permitting  it,  an  execution  issued  upon  a 
judgment  after  the  death  of  the  sole  judgment  creditor,  with- 
out a  scire  facias  or  other  appropriate  proceeding  provided  by 
law  for  revivor  of  the  judgment,  is  at  least  erroneous  and 
therefore  voidable. 

(Mavity  v.  Eastridge,  67  Ind.  211;  Day  v.  Sharp,  4  Whart.  339-34 
Am.  Dee.' 509:  Darlington  v.  Speakman,  9  W.  &  S.  182;  Hughes  v.  Wil- 
kinson,   37   Miss.   491.) 

If  there  is  special  statutory  provision  permitting  it,  the  writ 
may  issue  in  the  name  of  the  judgment  creditor  after  as  well 
as  before  his  death  without  further  proceedings  in  revivor. 

(Holmes  v.  Mclndoe,  20  Wis.  657.) 


266  VOID  JUDICIAL  AND  EXECUTION  SALES. 

Sometimes  Makes  it  Wholly  Void. 

§  284.  While  in  several  states  a  writ  is  held  to  be  merely- 
voidable  for  having  issued  subsequent  to  the  death  of  the  sole 
judgment  creditor  without  scire  facias,  there  are  other  au- 
thorities diametrically  at  variance  with  this  rule,  which  hold 
that  concomitant  with  the  death  of  the  judgment  creditor  is 
the  death  or  suspension  of  the  judgment,  though  the  same  is 
susceptible  of  being  resurrected  by  scire  facias.  This  line  of 
cases  hold  that  until  revived  the  judgment  is  in  a  state  of  sus- 
pended animation,  as  it  were,  and  during  the  intermediate 
period,  between  the  death  of  the  plaintiff  and  the  revival,  it 
furnishes  no  more  authority  for  the  issuance  of  a  writ  than  if 
it  never  had  been  rendered  at  all. 

(Smith  v.  Alexander,  80  Ala.  251;  Meyer  v.  Mintoyne,  106  111.  414; 
Morgan  v.  Taylor,  38  N.  J.  L.  317;  Stewart  v.  Nucklos,  15  Ala.  225  — 
50    Am.    Dec.    127.) 

There  seems  to  be  less  show  of  reason  for  the  requirement 
of  a  scire  facias  in  the  case  of  the  death  of  the  judgment 
creditor  than  in  the  case  of  the  debtor,  for  in  the  former  ease 
the  enforcement  of  the  judgment  by  execution  is  a  matter 
done  in  the  interest  of  the  estate  of  the  decedent,  while  in  the 
latter  it  is  a  proceeding  by  which  the  estate  of  the  decedent 
debtor  is  either  wholly  or  partially  consumed  in  the  enforce- 
ment of  the  writ.  It  is  therefore  contended  that  some  pro- 
ceeding should  be  had  whereby  the  interested  parties  may 
have  an  opportunity  to  show  cause  why  the  execution  should 
not  issue,  and  why  the  property  of  the  decedent  should  not 
be  taken  undei  it. 

EXECUTION   SUPPORTED   BY   DOEMA^T    JUDG- 
MENT. 

Are  Voidable  Only  as  Between  the  Parties. 

§  285.  Pursuant  to  a  decided  preponderance  of  judicial 
authority,  based  upon  reason  and  principle,  executions  issued 
upon  dormant  judgments,  are  merely  irregular  and  the  sale 
■and  resultant  title  are  but  voidable  at  the  instance  of  the 
execution  defendant,  and  invulnerable  upon  collateral  attack. 
By  the  weight  of  authority  such  irregularity  is  insufficient 
to  vitiate  the  sale,  which  being  once  consummated,  can  only 


EXECUTION  SUPPORTED   BY   DORMANT   JUDGMENT.         267 

be  questioned  by  a  direct  proceeding  in  equity  instituted  for 
that  purpose,  upon  equitable  grounds  for  relief. 

The  fact  that  the  period  designated  in  the  statute  has  ex- 
pired, will  not  satisfy  the  judgment,  raising  at  best  but  a 
mere  presumption  of  satisfaction.  The  philosophy  of  invok- 
ing the  writ  of  scire  facias,  or  where  this  has  been  abrogated, 
then  by  some  other  appropriate  proceeding  substituted  there- 
for, is  to  extend  an  opportunity  to  the  debtor  of  showing  that 
the  presumption  is  in  fact  true.  Under  the  common  law  rule 
as  well  as  under  statutes,  where  revivor  is  provided  for,  the 
power  to  issue  the  writ  is  not  absolutely  abolished  by  the  bar 
of  the  statute  of  limitations,  and  for  this  reason,  courts  have 
held  that  when  the  writ  has  issued  when  the  statute  has  run, 
and  without  revivor,  it  is  not  void  but  merely  erroneous,  and 
according  to  the  general  rule  respecting  irregularities,  the 
writ  is  effective  and  must  be  obeyed,  until  properly  vacated. 
A  sale  under  it  conveys  a  good  title  to  the  purchaser  as  against 
the  debtor  and  subsequent  judgment  creditors. 

(Link  v.  Connell,  4S  Neb.  574  —  67  N.  W.  Rep.  475;  De  Loch  v.  Hob- 
bins,  102  Ala.  288  —  14  So.  Eep.  777;  Gardner  v.  Railway  Co.,  102  Ala. 
635  —  15  So.  Rep.  271;  Eddy  v.  Caldwell.  23  Ore.  163  —  31  Pac.  Rep. 
475;  Gillespie  v.  Switzer,  43  Neb.  772  —  62  N.  W.  Rep.  228;  Richey  v. 
Merritt,  108  Ind.  347  —  9  N.  E.  Rep.  386;  Gerecke  v.  Campbell,  24  Neb. 
306  —  38  N.  W.  Rep.  847;  Maverick  v.  Floris,  71  Tex.  110  — S  S.  W. 
Rep.  636;  Ingraham  v.  Champion.  84  Wis.  235  —  54  N.  W.  Rep.  39S !; 
Bowar  v.  Railway  Co..  136  111.  101  —  26  N.  E.  "Rep.  702;  Mitchell  v. 
Corbin,  91  Ala.  599  —  8  So.  Rep.  810;  Hill  v.  Newman.  67  Tex.  265  —  3 
S.  W.  Rep.  271;  State  v.  Morgan,  7  Ired.  387  —  47  Am.  Dec.  329; 
Morgan  v.  Evans,  72  111.  586  —  22  Am.  Rep.  154;  Hinds  v.  Scott,  11 
Pa.  St.  19  —  51  Am.  Dec.  506;  Mitchell  v.  Evans,  5  How.  548  —  37  Am. 
Dec.  109;  Ingram  v.  B-elk.  2  Strob.  208  —  47  Am.  Dec.  591:  Woodcock 
v.  Bennet,  1  Cowen,  711  —  13  Am.  Dec.  568;  Snydor  v.  Roberts,  13 
Tex.  598  —  65  Am.  Dec.  84;  Ripley  v.  Erledge,  94  N.  C.  467;  Willard  v. 
Whipple,  40  Vt.  219;  Beale  v.  Botetout,  10  Gratt,  2S1;  Vastine  v.  Fury, 
2  S.  &  R.  426;  Jones  v.  Davis.  24  Wis.  229;  Doe  v.  Harter.  1  Cart.  431.) 

Intervening  Eights  of  Third  Persons. 

§  286.  Because  the  writ  of  execution  thus  issued  is  irregu- 
lar and  voidable,  it  may  be  quashed  upon  seasonably  inter- 
posed motion  to  that  effect  on  the  part  of  the  defendant,  to 
whom  alone  the  right  to  urge  this  objection  is  extended, 

(Gardner  v.  Railway  Co..  102  Ala.  635  —  15  So.  Pep.  271:  McCall  v. 
Rickarby,  85  Ala.  ir>2  —  4  So.  Rep.  414;  Perkins  v.  Iron  Co.,  77  Ala. 
403;    Elliott   v.   Holbrook,    33   Ala.    659.) 


268  VOID  JUDICIAL  AND  EXECUTION   SALES. 

unless  third  persons  have  acquired  rights  in  the  property  dur- 
ing the  interim  between  the  time  the  judgment  became  dor- 
mant and  the  issuance  of  the  execution,  who  stand  in  a  posi- 
tion to  urge  a  similar  objection,  as  a  matter  of  necessity;  but 
not  third  persons  having  acquired  rights  subsequent  to  the  is- 
suance of  the  writ  and  subject  to  its  lien. 

(Hastings  v.  Bryant,  115  111.  69  —  3  X.  E.  Rep.  507;  Leonard  v. 
Brewer,  86  Ala.  390  —  5  So.  Rep.  306;  Barth  v.  Bank,  115  111.  472  —  4  X. 
E.  Rep.  509;  Perkins  v.  Iron  Co.,  77  Ala.  403;  Sandlin  v.  Anderson,  76 
Ala.  403.) 

Under  the  Illinois  statute  limiting  the  duration  of  the 
judgment  lien,  it  is  held  that  with  the  expiration  of  the  speci- 
fied period  wherein  the  judgment  is  a  lien,  the  validity  of  the 
execution  and  levy  cease,  and  all  subsequent  proceedings,  as 
far  as  bona  fide  purchasers  or  incumbrancers  under  the  judg- 
ment debtor  are  concerned,  are  absolutely  void; 

(Barth  v.  Bank,  115  111.  472  —  4  N".  E.  Rep.  509;  Hastings  v.  Bryant, 
115  111.  69  —  3  N.  E.  Rep.  507;  Dobbins  v.  Bank.  112  111.   553.) 

and  in  Pennsylvania  it  is  held  that  a  judgment  at  the  arrival 
of  the  statutory  limitation  loses  its  lien  on  real  estate  only  as 
against  other  lien  creditors  or  purchasers,  though  as  to  the 
defendant  himself  the  lien  still  exists. 

(Shannon  v.  Norton.  132  Pa.  St.  375  —  19  Atl.  Rep.  138;  Haddington 
v.  Philadelphia,  108  Pa.  St.  466;  McCahan  v.  Elliott,  103  Pa,  St.  634.) 

In  Case  of  Absolute  Limitation  and  no  Provision  for  Revivor. 
§  287.  Where  there  is  no  provision  of  statute  for  reviving 
the  judgment,  and  where  there  is  an  absolute  limitation  to  the 
lien  of  the  judgment  and  issuance  of  execution,  and  no  other 
provision  exists  for  the  enforcement  of  the  judgment  after 
the  expiration  of  the  time  limited,  the  power  of  the  court  to 
issue  execution  is  unconditionally  at  an  end.  Therefore,  if 
the  writ  issues  in  contravention  of  this  limitation  it  is  mani- 
festly without  authority  and  plainly  devoid  of  legal  efficacy. 
In  contemplation  of  such  statutes  there  is  no  judgment  in 
existence  after  the  expiration  of  the  prescribed  time  —  no 
lien  against  the  property  of  the  debtor  or  claim  against  him 
personally  so  as  to  establish  a  cause  of  action  against  him 
thereon  —  and  hence  no  warrant  in  law  for  the  existence  of 
the  writ. 

Mann  v.  Superior  Court.  74  Cal.  106  —  15  Pac.  Pep.  44S:    Peters 
v.  Yawtcr,  10  Mont.  201  —  25  Pac.  Rep.  438;   Ward  v.  Bank,  46  Mich. 


EXECUTION  SUPPORTED   BY   DORMANT  JUDGMENT. 


269 


oo2_9  N    W.  Rep.  437;   Ballard  v.  Scruggs,  90  Term.  5S5-1S  S.  W. 
Rep    259;  Parsons  v.  Circuit  Court,  37  Mich.  287;  Burton  v.  Delophun, 
25  Mo     MM'-  376;   Rollins  v.  Mclntire,  s7  Mo.  496;  George  v.  Middou, 
02  Mo.  549;  Kearns  v.  Graves,  26  Cal.  150;  White  v.  Clark.  8  Cal. 
Given*  v.  Campbell,   20     Iowa,   79;    McGrew  v.   Reasons    8    I*j,  4 85; 
McDonald  v.  Dickson,  85  N.  C.  248;   Lyons  v.  Ross,  84   N.  C.  588.) 

Manifestly  such  statutes  must  expressly  provide  for  the 
termination  of  the  lien  and  judgment  and  forbid  subsequent 
action  or  proceeding  thereon  in  any  way,  or  else  the  ruling 
that  the  execution  and  proceedings  are  void,  is  wrong  on  prin- 
ciple Such  judgments  can  not  be  considered  dormant,  but 
dead,'  and  therefore  the  statute  providing  for  their  termination 
is  broader  than  the  common  law  in  this  regard,  and  m  contra- 
vention thereof,  for  under  the  common  law  rule  the  judgment 
was  merely  dormant  if  execution  was  not  issued  thereon 
within  a  year  and  a  day  after  its  entry. 
Where  Judgment  Creditor  is  the  Purchaser. 

§  288    It  will  be  seen  that  under  the  current  of  authority 
in  America  an  execution  purchaser  under  a  writ  founded  upon 
a  dormant  judgment  is  not  without  protection       As  to  him 
the  proceeding  are  considered  valid,  unless  the  defendant 
utilizes  the  opportunity  afforded  him  by  interposing  his  mo- 
tion to  quash  the  writ  within  a  reasonable  time,  and  failing 
to  avail  himself  of  this  privilege  promptly,  the  irregularity 
will  be  considered  waived,  and  the  proceedings  unimpeachable 
thereafter,  because  of  the  debtor's  own  laches.      Obvjondy, 
in  accordance  with  the  decided  preponderance  of  authority, 
holding  the  writ  voidable  only,  it  is  immaterial  as  to  the 
validity  of  the  proceedings  of  sale  and  resultant  title,  whether 
the  judgment  creditor  or  a  third  person  becomesthe  pur- 
chaser if  no  objections  are  made  because  the  execution  issued 
on  a  dormant  judgment.      Yet  contention  is  not  wanting  to 
the  effect  that,  as  the  plaintiff  is  chargeable  as  a  matter  of  law 
with  notice  of  all  irregularities,  if  he  purchases  the  sale  is  void 
and  no  title  passes  to  him. 

,BZ  v.  V,l.  05  Tenn.  87-31  B.  W.  Rep.  IN,  toton  V  Ata*. 
82'T™n.  Ml  Hfc*l-  v.  Hehn,  4  Lit,  "-?£££%£ 
v.  Dolby.  27  Tcnn.  409;  Weaver  v.  Oyer,  1  Dev.  338,   Wilson  v. 

30  Tenn.   192.) 


270  VOID  JUDICIAL  AND   EXECUTION   SALES. 


SALES  UNDER  SATISFIED  JUDGMENTS. 

Is  Void  by  the  Weight  of  Authority. 

§  289.  Payment,  as  a  necessary  consequence,  destroys  the 
vitality  of  the  judgment,  for  it  has  then  performed  its  func- 
tions —  satisfied  its  purpose.  When  once  paid  it  is  there- 
after a  mere  nullity,  because  its  efficacy  has  expired.  Pur- 
suant to  the  suggestion  of  reason,  and  the  vast  preponderating 
current  of  judicial  authority,  when  a  judgment  or  decree  has 
been  satisfied  by  payment  of  the  amount  thereof,  or  by  other 
appropriate  means,  it  is  unconditionally  void,  as  veil  as  everv 
act  thereafter  performed  under  it.  It  is  a  self-evident  truth 
that  the  judgment  is  the  exclusive  foundation  of  the  officer's 
authority  to  sell  and  convey  the  defendant's  property,  and 
as  an  inevitable  consequence  resultant  from  the  incident  of 
payment  or  satisfaction,  the  power  of  the  sheriff  is  terminated, 
and  his  acts  must  be  nullities  if  done  under  it,  because  there 
is  no  foundation  for  them,  and  no  right  or  title  can  be  ac- 
quired under  them  to  the  property  ostensibly  sold. 

The  purchaser  at  an  execution  sale  can  be  the  recipient  of 
no  higher  rights  than  are  actually  conferred  upon  him  by 
the  judgment,  and  as  this  has  been  perpetually  terminated  by 
reason  of  its  satisfaction,  the  sale  under  execution  issued  upon 
it,  is  absolutely  void,  as  to  every  one  purchasing  thereunder, 
whether  bona  fide  or  not,  even  in  the  absence  of  a  cancella- 
tion of  the  record  of  judgment.  The  docket  of  the  judgment 
is  a  requisite  intended  to  serve  the  dual  purpose  of  protecting 
purchasers  from  the  judgment  debtor  and  for  the  judgment 
creditor's  convenience  and  benefit,  but  not  for  the  protection 
of  the  purchaser  under  the  judgment.  Manifestly,  the  only 
purpose  of  an  execution  is  for  the  enforcement  of  what  may 
be  payable  upon  the  judgment,  which  is  simply  nothing  if  the 
same  has  been  satisfied  by  payment. 

The  good  faith  with  which  the  purchaser  bought  is  a  mat- 
ter of  inconsequential  consideration,  if  the  judgment  was  in 
fact  satisfied  prior  to  the  sale,  however  harsh  this  rule  may 
seem.  If  perchance  he  has  been  misled,  the  debtor  avIio  has 
performed  all  the  law  requires  of  him,  should  not  be  com- 
■I  to  suffer  it:  order  to  obviate  his  misfortunes,  for  usually 
ili<   courl  has  ample  power  to  afford  him  relief.     But  if  not, 


SALES    UNDER    SATISFIED    JUDGMENTS. 


271 


then  there  is  no  principle  of  law  by  which  the  burdens  of  his 
error  can  be  thrown  upon  the  debtor  who  is  equally  as  inno- 
cent and  free  from  fault  as  the  purchaser. 

(Shaffer  v.  McCrackin,  90  Eowa,  57S-58  X.  W.  Rep.  910;  Huber  v. 
Pickler  94  Mo.  3S2-7  S.  W.  Rep.  427;  Soukup  v.  Investment  Co., 
S4  Iowa  44S-51  N.  W.  Rep.  167;  Boss  v.  Morgan.  130  Ind.  305-30 
X  E  Rep.  141;  Reynolds  v.  Lincoln,  71  Cal.  183-'.)  Pac.  Rep.  176; 
Cluto  v.  Emmerich.  99  N.  Y.  342-2  N.  E.  Rep.  6;  Bullard  v.  McArdle, 
98  Cal  355-33  Pac.  Rep.  193;  Griffin  v.  Lacourse,  31  Fla.  125-12  feo. 
Rep  665;  Miller  v.  Morrison,  43  Kan.  446-23  Pac.  Rep.  612;  Benton 
v  Hatch  1-2  X.  Y.  322-25  N.  E.  Rep.  4S6;  Terry  v.  O'Neal.  71  lex. 
592  —  9  S  W  Rep.  673;  Murrell  v.  Roberts,  11  Ired.  424-53  Am.  Dec. 
419;  Frost  v.  Bank,  70  N.  Y.  553-26  Am.  Rep.  627;  Wells  V.  Chandler, 
2  Fed  Rep.  273;  Huff  v.  Morton,  S3  Mo.  402;  Merritt  v.  Richey,  97 
Ind  -36-  Drefahl  v.  Tattle.  42  Iowa,  177:  Durett  v.  Briggs,  47  Mo.  356; 
McClure  v.  Logan,  59  Mo.  234;  State  v.  Salvers,  19  Ind.  432;  Carpenter 
v.   tetihvell,   11  N.  Y.   61;   Craft  v.   Merrill,   14  N.  Y.   456.) 

And  even  if  no  formal  entry  of  the  satisfaction  is  made, 
the  payment  of  the  judgment  terminates  the  lien,  for  to  hold 
otherwise  would  be  an  inexcusable  and  senseless  sacrifice  of 
substance  to  form  and  shadow,  and  repugnant  to  the  modern 
progressive  spirit  and  policy  of  the  law. 

(Insurance  Co.  v.  Yanlue,  126  Ind.  410-26  N.  E.  Rep.  119;  Chapin 
V  McLaren,  105  Ind.  563-5  N.  E.  Rep.  6SS;  Shaffer  v.  McCrackin,  90 
Imva.  578  —  58  X.  W.  Rep.  910;  Shields  v.  Moore,  48  Ind.  440.) 

Hence  an  execution  defendant  whose  land  has  been  levied 
upon  and  sold  under  a  satisfied  judgment,  though  satisfaction 
is  not  shown  by  the  record,  may  either  treat  the  sale  as  void, 
or  he  may  waive  such  invalidity  and  institute  a  suit  at  law 
against  the  execution  creditor  to  recover  from  him  the  value 
of  the  premises. 

(Pope  v.  Benster,  42  Xeb.  304  —  60  X.  W.  Rep.  561.) 

Consequently,  if  after  the  payment  of  the  purchase  money 
and  before  the  execution  of  the  deed,  the  sheriff  becomes  ap- 
prised of  the  payment  of  the  judgment,  notifies  the  purchaser 
thereof  and  tenders  back  the  purchase  money,  the  deed  made 
by  him  to  such  purchaser,  who  refuses  to  accept  his  money 
from  the  officer,  is  absolutely  void.  Such  a  purchaser  can  in 
no  way  be  considered  innocent, 

(Myer  v.  Cochrane,  29  Ind.  256.) 


272  VOID  JUDICIAL  AND  EXECUTION  SALES 

Silence  of  Record  and  no  Notice  Gives  Title  to  Purchaser. 

§  290.  On  the  other  hand  it  is  asserted  in  Tennessee  that  an 
execution  apparently  fair  upon  its  face,  and  emanating  from 
a  competent  court  wherein  is  entered  a  judgment  also  regular, 
and  as  far  as  can  be  ascertained  from  the  record,  is  unsatisfied 
and  no  impediment  being  apparent  to  its  enforcement,  such 
a  writ  will  be  considered  regular;  and  though  voidable,  yet  is 
not  void,  and  is  ample  justification  to  the  officer. 

(Mason  v.  Vance,   1   Sneed,   ITS  —  60  Am.  Dec.   144;   Clark  v.   Bond, 

7  Baxt.  288;   Ethridge  v.  Edwards,   1   Swan,   426;    Esselman  v.    Welts, 

8  Humph.  487.) 

So  in  Pennsylvania,  Alabama  and  Mississippi  it  is  hel'd 
that  where  the  record  is  silent  as  to  the  infirmity  with  which 
the  writ  is  affected,  in  the  absence  of  notice  of  payment  of 
the  judgment,  the  purchaser  has  a  right  to  assume  that  the 
record  discloses  the  truth,  as  he  is  ordinarily  charged  with 
the  inspection  of  the  record  of  the  judgment  and  writ,  which, 
in  the  absence  of  notice  to  the  contrary,  are  held  to  be  a  safe 
guide  for  him.  Consequently,  the  rule  which  obtains  in  these 
states,  will  not  permit  a  bona  fide  purchaser  to  be  victimized 
in  this  manner. 

(Saunders  v.  Gould,  134  Pa.  St.  445  —  19  Atl.  Rep.  694;  Boren  V. 
McGhee,  6  Port.  432  —  31  Am.  Dec.  695;  Meigs  v.  Bunting.  141  Pa.  St. 
233  —  21  Atl.  Rep.  58S;  Bank  v.  Ingersoll.  10  S.  &  M.  35  —  48  Am.  Dec. 
734;  Saunders  v.  Gould.  124  Pa.  St.  237—16  Atl.  Rep.  S07;  Hoffman  v. 
Strohacker,  7  Watts,  86  —  32  Am.  Dec.  740;  Steele  v.  Tutwiler,  68  Ala. 
107;   Gibbs  v.  Neely,  7  Watts,  305.) 

AVe  can  not  concur  in  this  doctrine  because  it  seems  to  us 
to  be  not  only  against  the  current  of  authority,  but  also  con- 
trary to  principle  and  opposed  to  good  policy. 

Although  there  is  a  contrariety  of  opinion  otherwise,  the 
authorities  are  harmonious  at  least  to  the  extent  that  if  the 
judgment  is  in  fact  satisfied,  a  subsequent  sale  thereunder  to 
anyone  having  cither  actual  or  constructive  notice  thereof,  is 
void  and  passes  no  title,  for  such  a  purchaser  can  then  not  be 
said  to  be  an  innocent  or  bona  fide  purchaser. 

(Wilhoit  v.  Lyons,  98  Cat.  409  —  33  Pac.  Rep.  325;  Eversdon  v.  Mahew, 
65  Cal.  163  —  3  Pac.  Rep.  641;  Purser  v.  Cady,  49  Pac.  Rep.  180.) 


EFFECT  OF  REVERSAL  OF  JUDGMENT  UPON  SALE.  273 

EFFECT  OF  REVERSAL  OF  JUDGMENT  UPON  THE 
SALE  THEREUNDER. 

Purchase  by  Stranger  in  Good  Faith  and  Without  Notice. 

§'291.  It  is  a  universal  rule  of  law  that  an  execution  sale 
made  to  a  stranger  who  purchased  in  good  faith  and  without 
notice,  and  who  has  bought  the  legal  title  and  has  paid  his 
money,  is  not  avoided  by  reason  of  a  subsequent  reversal  of 
the  money  judgment  which  is  merely  voidable  for  irregu- 
larity. Sales  consummated  under  the  coercive  process  of  the 
law  emanating  from  an  erroneous  or  irregular  judgment  are 
not  affected  by  the  reversal  of  that  judgment  by  the  appellate 
court  when  no  stay  bond  has  been  given,  and  in  the  absence 
of  collusion  and  unfairness. 

(Garrittee  v.  Poplain,  7?.  Md.  322  —  20  Atl.  Rep.  1070;  Gowen  v. 
Conlow,  51  Minn.  213  —  53  N.  W.  Rep.  365;  Withers  v.  Jacks,  79  Cal. 
297  —  21  Pac.  Rep.  824;  O'Brien  v.  Harrison,  59  Iowa,  686  —  12  N.  W. 
Rep.  256;  Weeks  v.  Weeks,  106  N.  Y.  626  —  13  N.  E.  Rep.  96;  Purser  v. 
Cady,  49  Pac.  Rep.  180;  Kramer  v.  Wellendorff,  10  Atl.  Rep.  892; 
Huckins  v.  Kapf,  14  S.  W.  Rep.  1016;  Ryan  v.  Staples,  76  Fed.  Rep. 
721;  Gray  v.  Brignardello,  1  Wall.  627;  Reynolds  v.  Harris.  14  Cal.  667  — 
76  Am.  Dec.  459 ;  McCormick  v.  MeClure,  6  Blackf.  466  —  39  Am.  Dec. 
441.) 

But  this  rule  has  no  application,  as  a  matter  of  necessity,  to 
the  judgment  creditor  as  he  is  not  a  bona  fide  purchaser  with- 
out notice,  being  bound  to  know  that  the  proceedings  are  ir- 
regular or  illegal,  and  can  not  hold  the  property  upon  a  re- 
versal of  the  judgment,  whether  the  property  sold  be  real  es- 
tate or  personalty. 

(Boos  v.  Morgan,  130  Ind.  305  —  30  N.  E.  Rep,  141;  Gould  v.  Sternberg. 
128  111.  510  —  21  N.  E.  Rep.  628;  Shirk  v.  Thomas,  121  Ind.  147—22 
N.  E.  Rep.  976;  Benney  v.  Clein,  15  Wash.  581—46  Pac.  Rep.  1037; 
Munson   v.   Plummer,   58   Iowa,   736  —  13   N.    W.   Rep.    71.) 

And  the  same  rule  applies  where  the  property  is  bought  bv 
the  attorney  of  record,  in  which  case  the  saie  falls  to  the 
ground  upon  a  reversal  of  the  judgment. 

(Galpin  v.  Page,  18  Wall.   350.) 

Defendant's  Rights  and  Remedy  upon  a  Reversal. 

§  292.  According  to  a  decided  preponderance  of  authority 
it  is  the  rule  that  if  the  property  is  sold  under  execution  issued 
upon  an  irregular  or  erroneous  judgment  and  is  bought  in  by 
18 


2T-i  VOID  JUDICIAL  AND   EXECUTION   SALES. 

a  stranger  to  the  proceedings,  upon  a  reversal  of  the  judgment 
the  defendant  in  the  writ  or  his  assignee  may  recover  from 
the  plaintiff  the  full  value  of  the  property,  but  the  title  to 
the  same  is  unaffected  by  the  reversal. 

(Gould  v.  Sternberg,  12S  111.  510  —  21  N.  E.  Rep.  628;  Cleveland  v. 
Tufts,  69  Tex.  580  —  7  S.  W.  Rep.  72 ;  Carson  v.  Suggett,  34  Mo.  364  — 
86  Am.  Dec.  112;  Smith  v.  Zent,  83  Ind.  86  —  43  Am.  Rep.  61;  Trentman 
v.  Willey.  85  Ind.  33;  Thompson  v.  Thompson,  1  N.  J.  L.  159.) 

And  pursuant  to  the  rule  obtaining  in  other  states  the  de- 
fendant's right  of  recovery  from  the  plaintiff,  in  such  case,  is 
restricted  to  the  actual  amount  for  which  the  property  was 
sold  and  which  came  into  the  hands  of  the  judgment  plaintiff, 
and  not  the  real  value  of  the  property. 

(Peck  v.  McLean,  36  Minn.  228  —  30  N.  W.  Rep.  759;  Gay  v.  Smith, 
38  N.  H.  171 ;  Bickerstaff  v.  Dellinger,  1  Murph.  272 ;  Bryant  ?.  Fairfield, 
51   Me.    149;    Levett   v.    Church,   12    Barb.    67.) 

The  latter  rule  is  sound  on  principle  where  the  action  is 
brought  against  the  officer  before  he  has  paid  over  to  the  plain- 
tiff the  money  realized  from  the  sale,  but  its  application  to  this 
extent,  as  against  the  plaintiff  himself,  after  having  received 
the  money  is  not  alone  in  violation  of  sound  principles  but 
its  operation  is  manifestly  inequitable,  for  nothing  short  of 
the  actual  value  of  the  property  at  the  time  it  was  taken  from 
him  will  restore  the  defendant  to  the  condition  he  was  in 
prior  to  the  seizure,  and  the  plaintiff  is  not,  as  the  officer,  pro- 
tected by  presumptions,  nor  should  the  defendant  sacrifice 
a  portion  of  his  property  as  a  penalty  for  not  satisfying  an 
illegal  judgment  sought  to  be  enforced  by  the  plaintiff. 

The  Rule  also  Applies  to  Judicial  Sales. 

§  293.  The  rule  applicable  to  execution  sales  also  applies  to 
judicial  sales.  Where  the  sale  is  to  a  third  party  and  a  pur- 
chaser in  good  faith,  payment  having  been  made,  confirmation 
had  and  deed  of  conveyance  executed  and  delivered,  subse- 
quent reversal  of  the  decree  or  order  of  sale  can  not  vacate 
or  avoid  the  sale.  "  If  the  court  has  jurisdiction  to  render 
the  judgment  or  pronounce  the  decree,  that  is,  if  it  has  juris- 
diction over  the  parties  and  the  subject-matter,  then  upon 
principles  of  universal  law,  acts  performed  and  rights  acquired 
by  third  person-,  under  the  authority  of  the  judgment  or  de- 
cree, and  while  it  remains  in  force,  must  be  sustained,  not- 


BY  WHOM  THE  SALE  MUST  BE  CONDUCTED.  275 

withstanding  a  subsequent  reversal.  The  necessity  of  this 
rule,  as  founded  upon  important  considerations  of  public  pol- 
icy, is  too  apparent  to  admit  of  dispute  ". 

(Hay  v.  Bennett,  153  111.  271  —  38  N.  E.  Rep.  645;  Goudy  v.  Hall, 
36  111.  313  —  87  Am.  Dec.  217:  McBride  v.  Langworthy,  14  Ohio  St.  350  — 
S4  Am.  Vive.  383;  Bailey  v  Orphan  School,  14  S.  W.  Kep.  908;  Galpin 
v.   Page,  is  Wall.  350.) 

Want  of  Jurisdiction  Annuls  the  Sale  in  Any  Event. 

§  294.  Pursuant  to  the  doctrine  enunciated  by  an  unbroken 
line  of  authorities,  a  doctrine  founded  in  necessity  and  on  the 
plainest  of  principles,  where  the  judgment  is  not  reversed  or 
remanded  for  error  or  irregularities,  but  for  want  of  jurisdic- 
tion to  render  it,  the  sale  is  unconditionally  void,  and  no  rights 
can  be  acquired  under  it,  the  execution  and  sale  fall  to  the 
ground  with  the  judgment. 

(MeCracken  v.  Flanagan.  141  X.  Y.  174  —  36  XT.  E.  Rep.  10;  Mining 
Co.  v.  Mining  Co.,  12  Colo.  46  —  20  Pac.  Rep.  771:  Anderson  v.  Gray, 
134  111.  550  —  25  X.  E.  Rep.  S43 ;  Paul  v.  Willis.  69  Tex.  261  —  7  S.  W. 
Rep.  357;  Rimes  v.  Williams,  99  Ga.  2S1  —  25  S.  E.  Rep.  68.5:  MeMinn 
v.  Whelan,  27  Cal.  300.) 

And  in  such  case  the  fact  that  third  parties  have  purchased 
under  the  belief  that  the  judgment  or  decree  is  valid  and 
binding  between  the  parties,  is  a  matter  of  inconsequential 
consideration,  for  this  will  not  defeat  the  right  of  showing  the 
want  of  jurisdiction  and  the  utter  nullity  of  the  proceedings 
by  reason  thereof. 

(Alining  Co.  v.  Mining  Co.,  12  Colo.  46  —  20  Pac.  Rep.  771:  Mastin  v. 
Gray,  19  Kan.  458  —  27  Am.  Rep.  149;  Ferguson  v.  Crawford.  70  X.  Y. 
253  —  26  Am.  Rep.  589;  Harshey  v.  Blaekmar,  20  Iowa,  161  —  89  Am. 
Dec.  520.) 

If  the  judgment  has  been  vacated  by  appeal  or  otherwise, 
after  the  issuance  of  the  execution  but  before  the  sale,  the 
power  to  make  it  is  terminated,  and  it  must  fall  to  the  ground. 

(Bullard  v.  McArdle,  98  Cal.  355  —  33  Pac.  Rep.  193;  Frost  v.  Bank, 
70  X.  Y.  553  —  26  Am.  Rep.  627;  Wood  v.  Colvin,  2  Hill,  566  —  38  Am. 
Dec.   598.) 

BY  WHOM  THE  SALE  MUST  BE  CONDUCTED. 

In  Judicial  Sales  Generally  by  the  Officer  Designated  in  Decree. 
§  295.  Judicial  sales  under  decrees  in  chancery  are  ordi- 
narily made  by  a  master  or  other  functionary  of  the  court 


276  VOID   JUDICIAL   AND   EXECUTION    SALES. 

appointed  and  commissioned  by  it  to  conduct  the  sale.  Gen- 
erally, in  the  absence  of  statutory  provision  to  the  contrary, 
all  judicial  sales  are  made  by  someone  particularly  desig- 
nated in  the  decree,  order  or  license,  or  under  the  immediate 
direction  and  superintendence  of  such  functionary.  How- 
ever, the  functionary  is  permitted  to  employ  an  auxiliary  by 
way  of  an  auctioneer  to  conduct  the  sale  in  his  personal  pres- 
ence. The  master,  commissioner  or  other  officer  thus  ap- 
pointed by  the  court,  in  the  performance  of  the  duties  imposed 
upon  him  by  reason  of  his  appointment,  is  but  the  mere  in- 
strument of  the  court  in  the  conduct  of  the  sale. 

(Mining  Co.  v.  Mason,  145  U.  S.  .349  —  12  Sup.  Ct.  Rep.  887;  Bol- 
giano  v.  Cooke,  19  Md.  375;  Blossom  v.  Railway  Co..  3  Wall.  196; 
Noland  v.  Noland,  12  Bush,  426;  Williamson  v.  Berry,   8  How.   495.) 

In  Execution  Sales  by  the  Officer  to  Whom  the  Writ  is  Directed. 

§  296.  In  the  absence  of  a  disqualification  to  act,  all  sales 
under  executions  must  be  made  by  the  sheriff  or  constable, 
to  whom  the  same  is  legally  and  properly  directed,  and  when 
the  writ  is  directed  to  the  sheriff  generally  as  such,  by  a  duly 
appointed  deputy  acting  for  and  in  the  name  of  the  principal 
officer  in  this  regard.  As  a  general  rule  the  writ  confers  no 
authority  upon  any  other  officer  except  the  one  to  whom  it  is 
directed.    . 

(McKay  v.  Bank,  75  Tex.  LSI  —  12  S.  W.  Rep.  529;  Gowdy  v.  Sanders. 
88  Ky.  346  —  11  S.  W.  Rep.  82;  Bybee  v.  Ash  by,  7  111.  151  —  43  Am.  Dec. 
47;  Porter  v.   Stapp,   6  Colo.   32.) 

Thus,  under  a  statute  providing  that  the  execution  must  be 
directed  to  the  sher.'ff  of  the  particular  county  where  it  is  to 
be  enforced,  it  has  been  held  that  a  levy  of  the  writ  by  a  con- 
stable in  such  county  is  unauthorized  and  void. 

(Satterwhite  v.  Melczer,  2  Ariz.  24,  Pac.  Rep.  184.) 

So  strict  is  this  rule  enforced  requiring  the  writ  to  be  exe- 
cuted by  the  officer  to  whom  it  is  directed,  that  a  sale  made 
under  it  by  one  other  than  the  proper  officer  to  whom  it  was 
directed,  but  by  one  to  whom  it  might  have  been  addressed,  is 
without  any  validity. 

(Johnson  v.  Elkins,  90  Ky.  163  —  13  S.  W.  Rep.  448;  Gowdy  v. 
Sanders,  88  Ky.  346  —  11  S.  W.  Rep.  82.) 

So  it  is  held  that  an  execution  addressed  to  the  sheriff  of 
one  county  is  no  justification  for  a  seizure  by  the  sheriff  of 


BY  WHOM  THE  SALE  MUST  BE  CONDUCTED,  277 

another  county,  and  the  latter  is  not  alone  a  trespasser  if  he 
seeks  to  execute  it,  but  the  sale  thereunder  is  absolutely  with- 
out legal  efficacy; 

(Steele  v.  Metealf,  4  Tex.  Civ.  App.  313  —  23  S.  W.  Rep.  474.) 

and  the  real  estate  sold  by  a  sheriff  of  one  county  under  a 
venditioni  exponas  issued  to  the  sheriff  of  another  county  is 
also  a  nullity. 

(Terry  v.  Cutler,  4  Tex.  Civ.  App.  570  —  23  S.  W.  Rep.  539;  McKay 
\.  Bank,  75  Tex.  181  —  12  S.  W.  Rep.  529;  Terry  v.  Cutler.  39  S.  W.  Rep. 
152.) 

In  most  of  the  states  under  express  provision  of  statute, 
when  the  service  of  an  execution  upon  real  estate  has  been 
commenced  by  a  sheriff  the  sale  may  be  completed  by  his  suc- 
cessor in  office  without  a  writ  of  venditioni  exponas, 

(Lewis  v.  Bartlett,  12  Wash.  212  —  40  Pac.  Rep.  934;  Kane  v. 
McCowan.  55  Mo.  181;  Hastings  v.  Bryant,  115  111.  69  —  3  X.  E.  Rep. 
507 :  Holmes  v.  Mclndoe,  20  Wis.  057 ;  Bank  v.  Beatty,  3  Sneed,  305  — 
65  Am.  Dee.  58:  Leshey  v.  Gardner.  3  W.  &  S.  314  —  38  Am.  Dee.  764; 
Bellingall   v.    Duncan,    3    Gilm.    477.) 

though  in  some  jurisdictions  the  officer  who  has  commenced 
the  execution  of  the  writ  must  complete  its  service,  notwith- 
standing the  expiration  of  his  term  of  office. 

(Hunt  v.  Swayze,  55  X.  J.  L.  33  —  25  Atl.  Rep.  850;  State  v. 
Roberts.  7  Halst.  114  —  21  Am.  Dec.  62;  Newman  v.  Beckwith,  61  N. 
Y.  205;  Leavitt  v.  Smith,  7  Ala.  175;  State  v.  Hamilton,  16  X.  J.  L. 
153.) 

As  a  general  rule  a  sheriff  or  constable  has  no  authority 
whatever  to  execute  an  execution  which  is  directed  to  some 
other  sheriff  or  constable,  and  as  a  logical  sequence,  if  he  does 
act  under  it  the  sale  is  void  and  he  a  trespa-sor. 

(Johnson  v.  Elkins.  90  Ky.  163  —  13  S.  W.  Rep.  448;  Steel  v.  Metealf, 
4  Tex.  Civ.  App.  313  —  23  S.  W.  Rep.  474;  Cordon  v.  Camp,  3  La.  St. 
349  —  45  Am.  Dec.  647.) 

\Yithin  the  purview  of  the  law  the  officer  in  conducting  a 
sale  under  execution  exercises  the  functions  of  an  agent,  and 
every  one  dealing  with  him,  under  the  general  policy  of  the 
law  in  this  regard,  is  presumed  to  know  in  what  capacity  he 
is  acting.  It  is  upon  this  theory  that  courts  have  pronounced 
sales  void  when  made  by  an  officer  not  vested  with  authority. 
The  law  charges  him  who  deals  with  an  agent  to  ascertain  the 


278  VOID   JUDICIAL   AND   EXECUTION    SALES. 

scope  of  his  authority.  Accordingly,  a  sale  by  a  sheriff  sub- 
sequent to  the  expiration  of  his  tenure  of  office  under  a 
venditioni  exponas  issued  upon  a  levy  made  by  him  while 
in  office  is  utterly  devoid  of  legal  efficacy,  and  insufficient  as 
a  foundation  for  title  or  right  in  the  purchaser.  But  it  is 
otherwise  as  to  personal  property  by  reason  of  the  special 
propertv  vested  in  the  officer  who  makes  the  levy  and  his  eon- 
sequent  responsibility  arising  therefrom. 

(Busey  v.  Tuck,  47  Md.  171;  Clark  v.  Sa-vvyer,  48  Cal.  133;  Tukey  v. 
Smith,  IS  Me.  125  —  36  Am.  Dec.  704;  Bank  v.  Beatty,  3  Sneed,  305  — 
65  Am.  Dec.  58;  Purl  V.  Duvall,  6  H.  &  J.  69  — 9  Am.  Dec.  490.) 

Lands  Located  in  Another  County. 

§  297.  A  sheriff  has  no  power  to  sell  land  under  execution 
which  is  located  in  another  county  than  the  one  in  which  he 
is  elected,  in  the  absence  of  statutory  provision  authorizing 
it,  as  his  jurisdiction  as  such  is  co-extensive  with  the  terri- 
torial limits  of  his  county  only,  and  does  not  extend  beyond. 

(Terry  v.  O'Neal,  71  Tex.  594  —  9  S.  W.  Rep.  673;  Short  v.  Hepburn, 
75  Fed.  Rep.  113.) 

Writ  in  Officer's  Own  Favor. 

§  298.  Upon  principle  and  authority  a  sheriff  is  wholly  in- 
competent to  execute  a  writ  of  execution  emanating  from  a 
judgment  in  his  own  favor,  and  consequently  a  sale  made 
by  him  under  an  execution  thus  issued  and  directed  to  him  is 
utterly  void, 

(Knight  v.  Morrison,  79  Ga.  55  —  3  S.  E.  Rep.  6S9;  Callais  v.  McLeod, 
8  Ired.  221  —  49  Am.  Dec.  376;  Bowen  v.  Jones,  13    Ired.  25.) 

though  it  is  held  that  it  was  the  invariable  rule  for  the  sheriff 
or  other  levying  officer  to  levy  any  execution  for  costs  whether 
such  officer  be  interested  in  the  same  or  not. 

(Vining  v.  Officers  of  Court.  86  Ga.  127  —  12  S.  E.  Rep.  29S.) 

Sales  by  Administrators,  Executors  and  Guardians. 

§  299.  Sales  by  administrators,  executors  and  guardians 
must  be  made  by  them  personally,  or  under  their  direction, 
though  they  may  be  assisted  by  an  auxiliary  functionary  in 
conducting  the  sale,  which  however,  in  contemplation  of  law, 
is  nevertheless  made  by  the  fiduciary  himself.  Xor  is  it 
within  the  power  of  the  court  to  appoint  or  commission  some 
stranger  in  the  place  of  the  administrator  or  guardian  to  per- 


LIMITATIONS  ON  TIME  OF  MAKING  SALE.  279 

form  such  duty.  A  sale  by  a  stranger  so  licensed  conveys  no 
title  to  the  purchaser.  For  similar  reasons  these  fiduciaries 
have  no  power  to  delegate  their  authority  to  another  to  make 
the  sale. 

(Wilson  v.  Mason,  157  111.  304  —  42  N.  E.  Rep.  134;  State  v.  Younts, 
89  Ind.  313;  Wishand  v.  Small.  65  Ind.  120;  Pearson  V.  Jamison,  1 
McLean,  197;  Crouch  v.  Eveleth,  12  Miss.  503;  Rose  v.  Newman,  26 
Tex.  131;  Jarvis  v.  Russick,  12  Mo.  63;   Swan  v.  Wheeler,  4  Day,  137.) 

The  probate  court  has  no  authority  in  partition  proceedings 
in  an  estate  of  a  decedent  legally  pending  in  administration 
to  order  a  sale  of  the  property  of  the  estate  through  a  commis- 
sioner or  trustee.  Such  appointment  finds  no  warrant  in  law 
and  invests  the  commissioner  with  no  authority  to  prosecute 
the  sale.  In  the  absence  of  an  administrator  there  can  be  no 
sale  of  such  property,  and  a  sale  by  the  commissioner  in  either 
alternative  is  void. 

(Stafford  v.  Harris,  S2  Tex.  17S—  17  S.  W.  Rep.  530;  Rose  v.  Newman, 
26  Tex.  132;  Jarvis  v.  Rissuck,   12  Mo.  G3.) 

Sale  by  Agent  of  Commissioner. 

§  300.  If  the  court  which  made  the  decree  of  sale  and  ap- 
pointed the  commissioner  had  jurisdiction,  the  fact  that  the 
sale  under  such  decree  is  conducted  by  an  agent  of  the  au- 
thorized functionary  and  in  his  absence,  and  a  deed  is  subse- 
quently made  by  the  authorized  official  in  consummation 
thereof,  it  is  an  irregularity  of  sufficient  gravity  to  avoid  the 
sale  as  between  the  parties,  but  not  being  a  jurisdictional  in- 
firmity the  sale  must  stand  if  the  rights  of  innocent  purchasers 
have  intervened.  The  sale  is  voidable  but  upon  principle  can 
hardly  be  said  to  be  void,  and  when  properly  confirmed  by  the 
court  the  defect  is  cured. 

(Kirk  v.  Kirk.  137  N.  Y.  510  —  33  N.  E.  Rep.  552;  Woodhull  v.  Little, 
102  N.  Y.  165  —  6  N.  E.  Rep.  266;  Eaton  v.  White,  18  Wis.  517;  Mining 
Co.  V.  Mining  Co..  Ill  [11.  32;  Barteneaux  v.  Eastman.  G  Wis.  410; 
Chambers  v.  Jones,  72  111.  275;  Kellogg  v.  Wilson,  89  111.  357;  Sebastian 
v.  Johnson.  72  111.  282.) 

LIMITATIONS  ON  TIME  OF  MAKING  SALE. 

Sales  Noticed  for  and  Made  on  Non-judicial  Days. 

§  301.  The  notice  of  -.il«i  in  judicial  and  execution  sales 
fixes  the  time  when  the  sale  will  take  place,  which  in  every 


280  VOID   JUDICIAL   AND   EXECUTION    SALES. 

instance  should  not  conflict  with  the  prohibitions  of  law  in 
this  respect,  as  for  instance,  on  a  Sunday.  Though  the  stat- 
ute fixes  certain  days  as  non-judicial,  when  no  judicial  busi- 
ness shall  be  transacted  in  the  courts,  notwithstanding  a 
judicial  sale  is  conducted  by  a  fiduciary  of  the  court  and  under 
its  directions,  on  such  a  day,  the  sale  is  not  the  business  of  the 
court  within  the  purview  of  such  statutes,  and  therefore  not 
void  for  having  taken  place  pursuant  to  advertisement  upon 
a  non-judicial  day.  However,  a  sale  which  has  taken  place 
upon  either  Sunday  or  some  other  non-judicial  day,  is  irregu- 
lar in  a  sufficient  degree  by  reason  of  a  violation  of  this  rule, 
to  warrant  the  court  in  refusing  confirmation,  if  the  irregu- 
larity is  suggested  by  way  of  objections  to  the  confirmation 
within  a  proper  time. 

(King  v.  Piatt,  37  N.  Y.  155;  Crabtree  v.  WMteselle,  65  Tex.  Ill; 
Howard  v.   North.    5   Tex.   290  —  51   Am.   Dec.   769.) 

Sale  Made  upon  Day  other  than  that  Designated  by  Statute. 

§  302.  If  the  statute  expressly  prescribes  the  time  and  place 
of  sales  under  execution,  it  is  held  in  Texas,  North  Carolina 
and  Mississippi  that  if  the  sale  takes  place  at  a  time  in  con- 
travention of  this  provision,  it  is  not  only  voidable  but  alto- 
gether void,  and  the  purchaser  takes  no  title  to  the  land  thus 
sold  to  him. 

(Williamson  v.  Williamson,  52  Miss.  725:  Mayers  v.  Carter,  87  N.  C. 
146:  Moody  v.  Moeller,  72  Tex.  635  —  10  S.  W.  Rep.  727;  State  v.  Rives, 
5  Ired.  297;  Mordecai  v.  Speight,  3  Dev.  428;  Sinclaire  v.  Stanley,  64 
Tex.  67.) 

And  in  Tennessee  it  is  held  that  a  sheriff's  deed  to  land 
which  purports  to  be  founded  on  a  sale  for  taxes  is  void  if  it 
shows  upon  its  face  that  the  land  was  sold  on  a  day  different 
than  that  by  law  designated.  Though  these  sales  are  scruti- 
nized as  a  rule  with  unjust  strictness  by  the  courts. 

(Conrad  v.  Dardon.  4  Yerg.  307;  Thompson  v.   Lawrence,  2  Raxt.  415.) 

A  statute  providing  that  an  execution  sale  of  personal 
property  shall  be  made  at  the  end  of  twenty  days  from  the  day 
of  posting  notice  was  held  to  be  mandatory,  and  a  sale  made 
twenty-two  days  from  such  time  was  accordingly  considered 
void  and  the  purchaser  acquired  no  right  to  the  property  or 
it-  possessions,  a-  against  the  execution  defendant,  upon  the 
theory  that  as  a  general  rule,  personal  property  can  not  be 


LIMITATIONS   ON   TIME  OF    MAKING   SALE. 


281 


taken  and  appropriated  by  a  creditor  for  the  satisfaction  of 
his  demand,  by  Levy  and  sale  under  execution,  without  strict 
compliance  with  every  step  prescribed  by  law. 

(Morey  v.  Hoyt,  65  Conn.  516  —  33  At  I.  Rep.  496;   Webster  v.  Peck. 
31  Conn.  495.) 

After  Expiration  of  Active  Energy  of  the  Execution. 

§  303.  That  the  sale  must  be  mad.'  under  authority  both 
valid  and  subsisting  is  elementary;  consequently,  if  the  sale 
is  made  under  an  execution  or  other  authority  which  was  once 
sufficient,  but  which  through  lapse  of  time  has  lost  its  efficacy, 
the  sale  can  be  considered  in  no  other  light  than  that  it  was 
made  without  authority  and  is  void.  Accordingly,  after  its 
return  day,  the  execution  is  functus  officio,  whether  it  has 
been  returned  or  is  still  in  the  hands  of  the  officer,  and  after 
it  has  thus  expired  by  its  own  limitations,  it  furnishes  not  the 
least  pretense  of  power  to  the  officer  to  make  a  levy  and  sale 
thereunder.  A  levy  of  an  execution  made  subsequent  to  the 
expiration  of  the  active  energy  of  the  writ  is  an  absolute  nul- 
lity, and  the  sale  thereunder  is  void. 

(Waldrop  v.  Freidman,  90  Ala.  157  — 7  So.  Rep.  510;  Evans  v.  Caiman, 
92  Mich.  427  —  52  N.  W.  Rep.  787;  Faull  V.  Cooke,  19  Ore.  455  —  26 
Pac.  Rep.  662;  Rand  v.  Cutler.  155  Mass.  451-29  X.  E.  Rep.  1035; 
Ansonia  Co.  v.  Connor,  103  X.  Y.  502  —  9  X.  E.  Rep.  238;  Slater  v.  Lamb, 
L50  -Mass.  239  —  22  X.  E.  Rep.  S92;  Cain  v.  Woodward.  74  Tex.  549  — 
12  S.  W.  Rep.  319;  Com.  v.  Magee.  8  Pa.  St.  240  —  44  Am.  Dec.  509; 
Barden  v.  MeKinnie,  4  Hawks.  279  —  15  Am.  Dec.  519;  Wyer  v. 
Andrews,  13  Me.  168  —  29  Am.  Dec.  497:  Tower  v.  McDowell.  31  Pac. 
Rep.  843;  Corbin  v.  Pearce.  81  111.  461:  McDonald  v.  Granefeld,  45 
Mo.  28;  Sturgis'  Appeal,  86  Pa.  St.  413;  O'Bannon  v.  Saunders.  24  Gratt. 
138;  Edwards  v.  Ingraham,  31  Miss.  272.) 

But  a  sale  made  subsequent  to  the  expiration  of  the  active 
energy  of  the  writ  is  valid  provided,  however,  that  the  levy 
was  effectuated  prior  to  such  time. 

(Ludeman  v.  Hirth,  90  Mich.  17  —  55  X.  W.  Rep.  4(9;  Lumber  Co. 
v.  Eotel  Co.,  94  Cal.  217  —  29  Pac.  Rep.  627;  Spencer  v.  Haug,  45  Minn. 
231  —  47  X.  W.  Rep.  794:  Henderson  v.  Trimmin,  32  S.  C.  269  —  11  S. 
E.  Rep.  540;  Vroman  v.  Thompson,  51  Mich.  452  —  16  X.  W.  Rep.  SOS; 
Walton  v.  Wray,  54  Iowa,  531  —  0  X.  W.  Rep.  742:  OUis  v.  Kirkpatriek, 

2  Idaho.  976  —  28  Pac.  Rep.  435;  Quackenbush  v.  Henry,  42  Mich.  75  — 

3  X.  W.  Rep.  262;  Ansonia  Co.  v.  Connor,  103  X.  Y.  502  —  9  X.  E.  Rep. 
238;  Mason  v.  Bennett,  52  Fed.  Rep.  343;  Kelly  v.  Herrall,  20  Fed.  Rep. 
364.) 


282  VOID   JUDICIAL   AND   EXECUTION    SALES. 

Although  it  is  held  in  Texas,  Alabama  and  Tennessee  that 
a  sale  by  a  sheriff  under  an  execution  after  the  return  day  of 
the  writ  is  without  authority  and  passes  no  title  to  the  pur- 
chaser, even  if  a  levy  had  been  made  prior  to  the  return  day. 
It  is  difficult  to  comprehend  the  logic  employed  to  reach  this 
result. 

i  Hawes  v.  Rucker,  94  Ala.  166  —  10  So.  Rep.  85;  Cain  v.  Woodward.  74 
Tex.  549  —  12  3.  W.  Rep.  319;  Smith  v.  Mundy,  18  Aia.  182;  Rogers  v. 
Cawood,  1  Swan.  142  —  55  Am.  Dec.  729;  Morgan  v.  Ramsey,  15  Ala. 
190;  Young  v.  Smith,  23  Tex.  598;  Overton  v.  Perkins,  10  Yerg.  328; 
Towns  v.   Harris,    13  lex.    507.) 

Sale  after  Death  of  Debtor  on  Execution  Issued  before. 

§  304.  If  the  execution  is  issued  before  the  death  of  the 
judgment  defendant  it  may  be  executed  by  making  a  sale 
thereunder  after  his  death. 

(Coffin  v.  Freeman,  84  Me.  535  —  24  Atl.  Rep.  9S6;  Renners  v.  Rhine- 
hart,    107   N.   C.    705—12    S.    E.    Rep.    456.) 

But  in  Texas  it  is  held  that  if  the  writ  issued  and  levy  was 
made  upon  the  land  subsequent  to  the  demise  of  the  judgment 
defendant  upon  a  judgment  obtained  against  him  while  in 
life,  the  sale  is  voidable  but  not  void. 

(Cain  v.  Woodward,  74  Tex.  549  —  12  S.  W.  Rep.  319;  Hooper  v. 
Caruthers,  78  Tex.  4S2  — 15  S.  W.  Rep.  98.) 

In  Tennessee  it  is  held  that  a  sale  of  land  under  execution 
issued  upon  a  judgment  of  a  court  of  competent  jurisdiction, 
after  the  death  of  the  judgment  defendant,  but  tested  prior 
thereto,  without  revivor  of  the  judgment,  and  within  one  year 
of  its  rendition,  is  valid,  upon  the  theory  that  the  writ  bears 
teste  during  the  lifetime  the  levy  and  sale  arc  in  law  regarded 
as  transpiring  during  the  debtor's  existence. 

(Montgomery  v.  Realhafer,  85  Tenn.  668  —  5  S.  W.  Rep.   54.) 

Sale  on  Execution  Issued  after  Bar  of  the  Statute  is  Complete. 
§  305.  In  Michigan  and  North  <  larolina  it  is  held  an  execu- 
tion issued  upon  a  judgment  barred  by  the  lapse  of  time  is 
insufficient  to  confer  any  right  to  sell,  and  consequently  ;i  sale 
thereunder  is  wholly  ineffectual  to  pass  title  to  the  property; 
but  if  the  writ  is  issued  before  the  bar  of  the  statute  has  he- 
come  complete  the  sale  may  be  made  thereafter  and  a  good 
title  acquired  by  the  proceedings  of  sale. 


LIMITATIONS  OX  TIME  OF  MAKING  SALE.  283 

(Ludeman  v.  Hirth,  96  Mich.  17  —  5-5  N.  W.  Rep-  449;  Coward  v. 
Chastian,  99  X.  C.  443  —  6  S.  E.  Rep.  703:  Parsons  v.  Circuit  Judge 
37  Mich.  287;  Lytle  v.  Lytle,  '.'4  X.  C.  633;  Jerome  v.  Williams,  13  Mich. 
526;    Lyon   v.    Russ,    84   XT.    C.    5S8.) 

Execution  Issued  before  but  Sale  Made  after  Lien  of  Judgment 
Expired. 

§  306.  The  issuance  and  levy  of  an  execution  before  the 
expiration  of  the  judgment  lien  will  not  prolong  the  lien  of 
the  judgment  beyond  the  limit  of  time  proscribed  by  the 
statute,  and  therefore,  a  purchaser  at  a  sale  under  the  writ 
after  the  expiration  of  the  lien  receives  no  title  by  reason 
of  any  judgment  lien,  but  the  land  will  be  charged  with  all 
liens  and  encumbrances  which  have  attached  prior  to  the  pale, 
just  the  same  as  if  there  never  had  been  any  judgment  lien. 
The  proposition  is  indisputable  that  the  duration  of  the  lien  of 
judgment  prescribed  by  statute  can  not  be  prolonged  by  the 
courts. 

(Bradfield  v.  Newby,  130  Ind.  59  —  28  X.  E.  Rep.  619;  Wells  v.  Rower, 
126  Ind.  115  —  25  X.  E.  Rep.  603;  McAffee  v.  Reynolds,  130  Ind.  33  — 
28  X.  E.  Rep.  423.) 

Where  Judgment  Was  Satisfied  before  Sale. 

§  307.  Manifestly,  after  the  judgment  upon  which  the 
execution  was  issued  has  been  satisfied  by  its  payment  it  has 
performed  its  functions,  and  the  writ  itself  is  thereafter 
functus  officio,  notwithstanding-  it  was  issued  before  satis- 
faction of  the  judgment,  and  a  sale  under  it  is  ineffectual  for 
any  purpose,  because  there  is  no  foundation  to  support  the 
execution. 

(Simmons  v.  Vandergrift,  1  X.  J.  L.  55;  French  v.  Edwards,  5  Sawyer. 
266;  Garth  v.  Campbell,  10  Mo.  154;  Reed  v.  Pruyn,  7  Johns.  426  —  5 
Am.  Dec.  287;  Rutland  v.  Pippin.  7  Ala.  469;  Eaynes  v.  Sheriff,  76  Ga. 
33.) 

Statute  Repealed  or  Court  Abolished  before  Sale. 

§  308.  Where  the  order  of  sale  was  granted  under  the 
provisions  of  statute  which  was  repealed  prior  to  the  sale  no 
title  was  conferred  thereby; 

(Perry  v.  Clarkson,  16  Ohio,  572;  Hank  v.  Dudley,  2  Pet.  402:  Ludlow 
v.  Wade,  5  Ohio.  495;  Aspley  v.  Murphy.  50  Fed.  Rep.  376;  Insurance 
Co.  v.  Ritchie,  5  Wall.  541.) 


284  VOID   JUDICIAL    AND    EXECUTION    SALES. 

nor  is  a  sale  made  by  a  commissioner  appointed  to  execute  a 
decree  of  a  court  of  chancery  effective  for  any  purpose  if  made 
after  the  abolition  of  the  court  which  appointed  him  and  made 
the  decree. 

(McLaughlin    v.    Janney,    6    Gratt.    609.) 

Property  Put  in  Hands  of  Receiver  before  Sale. 

§  309.  ^Notwithstanding  the  property  has  been  properly 
levied  on  under  execution,  the  right  to  sell  the  same  under 
the  writ  may  yet  be  suspended  or  destroyed,  if  it  comes  into 
the  possession  of  a  receiver  appointed  and  acting  under  the 
authority  of  a  court  of  competent  jurisdiction.  If  the  sale 
under  the  execution  is  made  subsequent  to  such  appointment 
and  without  the  express  leave  of  court,  it  is  illegal  and 
void. 

(Walling  v.   Miller.   108  X.   Y.    173  —  15   X.    E.    Rep.    65.) 

\YHEN  SALE  MUST  BE  AT  PUBLIC  YEXDITE. 

Under  Executions  and  Decrees  and  Orders  of  Sale. 

§  310.  Judicial  sales,  whether  in  chancery  or  probate,  are 
usually  either  at  public  or  private  sale,  according  to  the  direc- 
tions in  this  regard  contained  in  the  license,  decree  or  order, 
or  the  provisions  of  statute  governing  this  matter.  In  some 
state-  express  provisions  of  statute  exist  making  it  optional 
with  the  court  to  order  the  <;ile  by  an  administrator,  executor 
or  guardian  to  be  either  public  or  private,  as  will  best  subserve 
the  interests  of  the  estate.  In  any  event,  the  sale  must  always 
lie  first  approved  by  the  court  before  any  rights  have  accrued 
or  obligations  attached,  and  after  it-  confirmation  the  sale  is 
made,  in  popular  phraseology,  though  not  completely  con- 
summated until  the  execution  and  delivery  of  the  deed  of  con- 
veyance. 

The  rule  i-  universal  and  inexorable  that  sales  under  execu- 
tions must  be  made  at  public  auction.  It  was  so  at  common 
law,  and  it  i-  ;i  requirement  of  statute  in  every  state,  and  is 
the  essence  of  such  ;i  -ale  Hence,  it  may  be  stated  as  a  gen- 
eral  rule  that  when  the  law  applicable  thereto  expressly  de- 
mands it.  or  if  the  decree,  license  or  order  of  sale  expressly 
directs  it,  thai  the  property  involved  be  disposed  of  at  public 
vendue,  a  violation  of  this  provision  or  direction,  by  making 


WHEN    LEVY    AN    &SSENTLAL   BEQUISITE. 


285 


the  sale  privately,  unquestionably  invalidates  the  whole  pro- 
ceedings and  no  title  will  pass. 

In  conducting  the  execution  sale  the  officer  acts  as  the 
agent  of  the  law,  his  powers  as  such  being  derived  from,  pre- 
scribed and  defined  by  the  statute,  and  being  specially  au- 
thorized by  law  to  sell  at  public  auction,  as  he  is  in  sales  under 
execution,'  the  special  authority  must  he  strictly  pursued. 
The  purchaser  is  bound  by  the  presumption  to  know  the 
limits  of  the  officer's  authority  as  delegated  to  him  by  the  law, 
and  purchasing  when  he  transgressed  such  special  authority, 
he  does  so  at  his  peril.  This  is  in  accordance  with  the  general 
principles  applicable  to  the  law  of  agency. 

Manifestly,  when  the  statute  requires  that  the  sheriff  make 
the  sale  under  execution  at  public  auction  to  the  highest 
bidder  thereat,  the  officer  is  imperatively  controlled  by  the 
requirements  thereof,  and  a  sale  made  in  contravention  of  the 
law  in  this  regard  is  ineffectual  to  pass  the  title  from  the  judg- 
ment debtor  to  the  ostensible  purchaser.  The  same  rule  per- 
tains when  a  sale  is  made  privately  in  violation  of  the  express 
directions  embodied  in  the  decree  or  order  of  sale. 

(Kevser's  Appeal.  13  Pa.  St.  409  -  53  Am.  Dec.  487 ;  Ware  v.  Houghton, 
41  Miss  370-93  Am.  Dec.  258;  Pierce  v.  Evans,  61  Pa.  St.  420;  Hutch- 
ins  v.  Cassidv.  46  Mo.  431;  Worton  v.  Howard.  2  S.  &  M.  527;  State 
v  Bank  45  Mo.  52S;  Ellet  V.  Paxon.  2  W.  &  B.  418;  Sturgeon  v.  Hamp- 
ton 88*  Mo.  203;  Neal  v.  Patterson,  40  Ga.  363;  Gaines  v.  De  La- 
Croix,  6  Wall.  719;  McArthur  V.  Carrie,  32  Ala.  75;  Fambo  v.  Gantt, 
12  La.  Ann.  298.) 

But  in  Arkansas  it  is  held  that  a  private  sale  of  lands  of  a 
decedent  made  under  the  order  of  the  court  is  not  void  when 
confirmed,  notwithstanding  the  statute  requires  a  public  sale 
and  this  upon  the  theory  that  probate  courts  are  courts  of 
superior  jurisdiction,  and  that  their  judgments  in  the  exercise 
of  jurisdiction,  when  rightfully  acquired,  can  not  be  im- 
peached in  a  collateral  proceeding. 

(Apel  v.  Kelsey,   52  Ark.   341-12  S.  W.   Rep.   703.) 

WHEN  LEVY  AN  ESSENTIAL  REQUISITE. 

Not  Necessary  where  Judgment  Is  a  Lien  on  the  Land. 

§  811.  A  levy  is  made  for  the  purpose  of  creating  a  lien 
upon  the  specific  property  involved  to  subject  it  to  the  satis- 
faction of  the  judgment  upon  which  the  writ  issued;  or  in 


286  VOID   JUDICIAL   AND    EXECUTION   SALES. 

other  words,  it  is  the  act  of  the  officer  by  which  he  sets  apart 
and  appropriates  the  defendant's  property  to  satisfy  the  man- 
dates of  the  execution.  As  a  logical  conclusion,  when  by 
statute  the  judgment,  when  entered  according*  to  the  re- 
quirements of  law,  constitutes  a  lien  upon  the  realty  of  the 
judgment  debtor,  no  levy  or  seizure,  as  it  is  sometimes  desig- 
nated, is  necessary  in  sales  under  writs  of  execution,  for  if 
there  is  already  a  lien  by  virtue  of  the  judgment,  the  subse- 
quent levy  or  seizure  is  a  superfluous  formality.  It  would  in 
no  way  augment  the  efficacy  of  the  previously  existing  judg- 
ment lien  to  enforce  which  the  proceedings  of  sale  are  had. 

Therefore,  despite  the  fact  that  the  ordinary  judgment  aris- 
ing by  virtue  of  suits  at  common  law  does  not  direct  the  sale 
of  any  specific  property,  yet  constituting  by  virtue  of  the  pro- 
visions of  law  a  lien  upon  real  estate  of  the  judgment  debtor, 
if  the  sale  under  execution  based  upon  such  judgment  be 
consummated  during  the  existence  of  the  judgment  lien,  a 
formal  levy  may  be  entirely  dispensed  with  as  an  unnecessary 
formality  without  affecting  the  validity  of  the  proceedings  of 
sale. 

(Farrior  v.  Houston,  100  N.  C.  369  —  6  S.  E.  Rep.  72;  Folsom  v. 
Carli,  5  Minn.  333  —  80  Am.  Dec.  429;  Wood  v.  Colvin.  5  Hill,  228;  Van 
Gelder  v.  Van  Gelder,  26  Hun,  356;  Lockwood  v.  Bigelow,  11  Minn.  113.) 

Where  Judgment  or  Decree  Directs  the  Sale  of  the  Property. 

§  312.  In  judicial  sales  under  orders,  decrees  or  licenses 
of  sale,  or  where  the  judgment  directs  the  sale  of  specific 
property,  as  in  the  foreclosure  of  mortgages  or  other  specific 
liens,  no  actual  levy  is  necessary,  because  the  order  or  decree 
under  which  the  sale  is  made  has  already  appropriated  and 
set  apart  the  particular  property  for  the  satisfaction  of  the 
mandate  thereof,  and  the  right  to  sell  has  attached  as  a  neces- 
sary consequence  of  the  proceedings  in  equity.  The  same  rule 
obtains  where  realty  is  ordered  to  be  sold  in  equity  under 
special  execution  by  which  the  officer  is  commanded  to  sell 
the  same.  If  the  suit  be  for  the  enforcement  of  a  specific  lien 
the  title  under  the  sale  dates  back  by  relation  to  the  inception 
of  the  lien,  and  like  the  case  where  the  judgment  is  a  lien,  a 
levy  would  be  supererogatory  and  idle  formality  contributing 
nothing  to  the  validity  of  the  sale. 

(Lumber  Co.  v.  Hotel  Co..  9-4  (al.  217  —  29  Pac.  Rep.  627;  Burkett 
v.  Clark,  46  Neb.  466  —  64  N.  W.  Rep.  1113.  Bank  v.  Page,  7  Ore.  454.) 


WHEN    LEVY    AX    ESSENTIAL   REQUISITE.  "-»< 

Where  Judgments  Are  not  General  Liens. 

§  313  But  where  the  judgment  itself  is  not  a  general  lien 
on  the  property  of  the  judgment  debtor,  as  in  some  of  the 
states,  there  a  levy  is  an  indispensable  requirement,  and  a  sale 
without  it  is  a  nullity,  because  no  lien  ever  attached  upon  the 
land,  and  hence,  in  theory  of  law,  the  property  never  was  sub- 
iected  to  the  process  of  the  court. 

Statutes  providing  for  a  levy  have  been  held  to  be  manda- 
tory, and  that  the  actual  levy  must  be  made  before  the  return 
day  of  the  execution, 

(O'Kelly  v.  Gholston.  89  Ga.  1-15  S.  E.  Rep.  123;  Evans  v.  Caiman, 
92  Mich.  427-52  N.  W.  Rep.  787;  Sanger  v.  Trammell,  66  Tex.  361- 
1S  W  Rep.  378;  Ludeman  v.  Hirth,  90  Mich.  17-:,.  X.  W.  Rep  449; 
Elliott  v.  Knott,  14  Md.  121-74  Am.  Dec.  519;  Hamblen  v  Hambfcn, 
33  Miss.  455;  Manning  v.  Dove.  10  Rich.  395;  Harman  v.  Hahn.  6  Baxt. 
90;  Collins  v.  Dixon,  72  Ga.  475.) 

and  that  it  is  absolutely  essential  that  the  officer's  return  of 
the  lew  of  the  writ  upon  lands  explicitly  shows  a  compliance 
with  all  the  statutory  requirements  relative,  thereto  or  else  the 
title  of  the  judgment  debtor  will  not  be  divested  by  the  pro- 
ceedings. 

(Rand  v.  Cutler,  155  Mass.  451-29  N.  E.  Rep.  1085;  Walsh  v.  Ander- 
son 135  Mass.  65;  Walsh  v.  Macomber.  130  Mass.  28;  Prescott  v.  Pettee, 
2  Pick.   276;    Bates  v.   Willard,    10  Met.    62.) 

It  is  therefore  a  general  rule  where  a  levy  is  required  upon 
real  estate  that  it  can  not  consist  in  any  mere  mental  de- 
termination, but  must  be  accomplished  in  a  manner  capable  of 
being  proved  and  identified  contemporaneously  with  its  oc- 
currence, as  by  seizure  of  the  land  to  be  sold,  as  it  is  no  the 
policy  of  the  law  to  conclude  one  by  an  act  not  susceptible  of 

ascertainment. 

(Langlev  v.  Jones.  33  Md.  171;  Cainpau  v  Barnard,  25  mcK Mi, 
.Tarboe  v.  Hall,  37  Md.  345;  Waters  v.  Duvall,  11  Gill  &  J.  37       ...  Am. 


Deo.  697. 


But  in  Rhode  Island  under  a  statute  containing  no  pro- 
vision as  to  the  manner  of  levying  an  execution  on  land,  pro- 
viding merely  that  if  the  sheriff  levy  the  writ  on  land  he  shall 
set  up  notice  of  sale,  the  levy  may  be  made  by  mere  mental 
process,  conclusively  proved  by  the  notice  of  sale. 

(Lynch  v.  Earle,  18  R.  1.  531-28  Atl.  Rep.  763.) 


288  VOID   JUDICIAL    AND    EXECUTION    SALES. 

On  Personal  Property  under  Execution. 

§  314.  According  to  the  numerical  strength  of  judicial  de- 
cisions personal  property  can  not  be  lawfully  sold  under  exe- 
cution unless  it  has  been  levied  upon  by  the  officer  who  holds 
the  writ,  or  has  been  subjected  to  his  control  by  its  actual 
seizure,  though  in  so  far  as  the  immediate  parties  to  the  pro- 
ceedings are  concerned,  the  levy  may  be  waived,  precluding 
subsequent  inquiry  on  the  part  of  the  defendant  for  want  of 
a  proper  levy  prior  to  the  sale. 

(Windmiller  v.  Chapman.  139  111.  163  —  28  N.  E.  Rep.  979;  Horsey 
v.  Knowles,  74  Md.  G02  —  22  Atl.  Rep.  1104;  Horgan  v.  Lyons,  59 
Minn.  217  —  60  N.  W.  Rep.  1099:  Karnes  v.  Alexander,  92  Mo.  660  —  4 
S.  W.  Rep.  518;  Yeomans  v.  Bird,  81  Ga.  340  —  0  S.  E.  Rep.  179;  Stone- 
bridge  v.  Perkins,  141  N.  Y.  1  —  35  N.  E.  Rep.  980;  Root  v.  Railway 
Co.,  45  Ohio  St.  222  —  12  N.  E.  Rep.  812;  Bradley  v.  Kesee,  5  Coldw. 
223  —  94  Am.  Dec.  246;  Seawall  v.  Bank,  3  Dev.  L.  279  —  22  Am.  Dec. 
722;  Rudy  v.  Com.,  35  Pa.  St.  1GG  — 78  Am.  Dec.  303;  Brown  v.  Pratt, 
4  Wis.  513  —  65  Am.  Dec.  330;  Berry  v.  Griffith,  2  H.  &  G.  337  —  18 
Am.  Dec.  309;  Trovello  v.  Tilford,  6  Watts.  46S  —  31  Am.  Dec.  484; 
Waters  v.  Duvall,  11  G.  &  J.  37  —  33  Am.  Dec.  693;  Brown  v.  Dickson, 
2  Humph.  395  —  37  Am.  Dec.  560;  Ware  v.  Bradford,  2  Ala.  676  —  36 
Am.  Dec.  427;  Reeves  v.  Sebern,  16  Iowa,  234  —  85  Am.  Dec.  513; 
Newman  v.  Hook,  37  Mo.  207  —  90  Am.  Dec.  37S;  Hughes  v.  Wait.  26 
Ark.  228;  Langley  v.  Jones,  33  Md.  171;  Brown  v.  Lane,  19  Tex.  203; 
Stuckeit  v.  Keller,  105  Pa.  St.  386;  Dement  v.  Thompson,  80  Ky.  255; 
Long  v.  Hall.  97  N.  C.  286  —  2  S.  E.  Rep.  229;  Humphrey  v.  Hitt.  6 
Gratt.  509;  Jewett  v.  Guyer.  38  Vt.  209;  Murphy  v.  Swadner,  33  Ohio 
St.   85.) 

Effect  and  Sufficiency  of  Levy. 

§  315.  Where  a  levy  is  an  essential  step  in  the  proceed- 
ings of  sale,  it  must  describe  the  property  with  sufficient 
certainty  to  identify  it,  or  else  it  is  void  for  uncertainty. 

(Porter  v.  Byrne,  10  Ind.  146  —  71  Am.  Dec.  305;  Taylor  v.  Cozart, 
4  Humph.  433 — 40  Am.  Dec.  655;  Chastian  v.  Phillips,  4  Jones  L.  459  — 
69  Am.  Dec.  760;  Brown  v.  Dickson,  2  Humph.  395  —  37  Am.  Dec.  560; 
Brigance  v.  Krwin,  1  Swan,  375 — 57  Am.  Dec.  779;  Saunders  v.  Bank, 
61  N.  H.  31.) 

And  to  constitute  a  valid  levy  of  the  goods  the  officer  must 
at  least  be  in  view  of  the  property,  and  have  control  of  it,  for 
a  more  paper  lew  h  insufficient;  nor  will  the  mere  making  of 
an  inventory  of  such  property  known  by  the  sheriff  to  be 
owned  by  the  execution  defendant,  especially  when  it  is  not 


FAILURE   TO   TAKE   OATH    CONCERNING    THE    SALE.  289 

present,  constitute  a  valid  levy,  for  the  officer  must  so  deal 
with  the  property  that,  were  it  not  for  the  writ  with  which 
he  is  armed,  he  would  be  a  trepasser. 

(Windmiller  v.  Chapman,  139  III.  163  —  28  X.  E.  Rep.  979;  Horsey 
v.  Knowles,  74  Md.  602-  22  All.  Hep.  1104;  Brown  v.  Pratt,  1  Wis. 
513  —  65  Am.  Dec.  330;  Bradley  v.  Kesee,  5  Coldw.  223  —  94  Am.  Dec. 
246;  Haggerty  v.  Wilber,  16  Johns.  286  —  8  Am.  Dec.  321;  Jones  v. 
Howard,  99  Ga.  451  —  27  S.  E.   Rep.   765.) 

Property  transferred  in  fraud  of  creditors  may  be  levied 
upon  under  writs  in  their  favor  without  showing  that  the 
transfer  was  made  to  avoid  the  payment  of  their  specific 
claims. 

(Lowry  v.  Fisher,  2  Bush,  70  —  92  Am.  Dec.  754;  Carpenter  v.  Roe, 
10  N.  Y.  227;  Wyman  v.  Drown.  50  Me.  139:  Clark  v.  French.  23  Me. 
221  —  39   Am.   Dec.   618;   Barling   v.   Bishopp,   29   Beav.   4!  7.) 

As  a  general  rule  property  in  the  custody  of  the  law  can 
not  be  levied  on  under  execution. 

(Hackley  v.  Swigert,  5  B.  Mon.  86  —  41  Am.  Dec.  256;  Martin  v. 
Davis,  21  Iowa,  535;  Nelson  v.  Connor.  6  Robt.  339:  Langdon  v. 
Loekett,  6  Ala.  727  —  41  Am.  Dec.  7s :  Jackson  v.  Lahee.  114  111.  287; 
Skinner  v.  Maxwell.  68  N.  C.  4(H);  Stout  v.  La  Follette,  64  Ind.  365; 
Barnes  v.  Treat,  7  Mass.  271 ;  Davis  v.  Drew,  6  N.  H.  399  —  25  Am.  Dec. 
467:   Vance  v.  Royal   Clay  Mfg.   Co..   82   Fed.    Rep.   251.) 

If  the  execution  issued  and  a  levy  was  perfected  there- 
under before  the  death  of  the  defendant  it  will  not  be  ar- 
rested or  discharged  by  his  death,  as  a  general  rule, 

(Wood  v.  Morehouse,  45  N.  Y.  368;  Thompson  v.  Ross,  26  Miss. 
200;  Grosvenor  v.  Gold,  9  Mass.  214;  Logsdon  v.  Spivey.  54  111.  104; 
Craig  v.  Fox,  10  Ohio,  563;  Center  v.  Billinghurst,  1  Cow.  33;  Day  v. 
Rice,  19  Md.  644.) 

though  in  Texas  all  proceedings  under  the  writ  abate  with 
the  death  of  the  execution  defendant,  and  the  levy  is  there- 
fore dissolved. 

(Chandler  v.  Burdett,  20  Tex.  42;  Miller  v.  Butler,  20  Tex.  402;  Con- 
krite  v.  Hart,  10  Tex.  140.) 

FAILURE  TO  TAKE  OATH  CONCERNING  THE 

SALE. 

Statutes  Requiring  Oath  Held  Mandatory. 

§  "10.   In  several  states  statutory  provisions  obtain  requir- 
ing an  administrator,  executor  or  guardian  to  take  an  oath 
19 


290  VOID   JUDICIAL    AND    EXECUTION    SALES. 

before  fixing  on  the  time  and  place  of  sale,  for  the  purpose 
of  insuring  greater  fidelity  in  the  performance  of  the  added 
duties  and  responsibilities  incident  to  the  transaction.  These 
statutes  usually  embrace  five  essentials,  and  one  of  these  is 
the  taking  of  the  oath  by  the  fiduciary  before  fixing  on  the 
time  and  place  of  sale,  a  compliance  with  which  is  in  every 
rase  considered  imperatively  essential  to  the  validity  of  the 
sale,  the  provisions  of  the  statute  being  generally  considered 
mandatory.  It  is  therefore  held  that  no  title  will  pass  to  the 
purchaser  at  such  sale  if  the  oath  has  not  been  taken  in  con- 
formity with  the  law  in  this  regard. 

(Cooper  v.  Sunderland.  3  Iowa.  114  —  66  Am.  Dee.  52;  Thornton  v. 
Mulquinne,  12  Iowa.  540  —  79  Am.  Dec.  54*;  Campbell  v.  Knights,  26 
Me.  224  —  45  Am.  Dee.  107:  Wilkinson  v.  Filby.  24  Wis.  441;  Williams 
v.  Peed,  5  Pick.  4S0;  Parker  v.  Nichols.  7  Pick.  lll;iTracy  v.  Roberts. 
88  Me.  310  —  34  Atl.  Pep.  6S;  Walker  v.  Goldsmith.  14  Ore.  125  —  12 
Pac.  Rep.  537;  Ryder  v.  Flanders.  30  Mich.  336;  Land  Co.  v.  Kurtz, 
45  Minn.  380  —  47  N.  W.  Rep.  1134;  Bachelor  v.  Korb,  78  N.  W.  Pep. 
4S5.) 

Where  the  time  and  place  of  sale  were  fixed  before  the  oath 
was  taken,  but  the  sale  was  made  subsequent  thereto,  the  pro- 
ceedings were  decided  invalid  in  Wisconsin,  where  the  su- 
preme court  said:  "  The  provision,  however,  is  peremptory, 
that  the  oath  required  shall  be  taken  before  fixing  the  time 
and  place  of  sale.  Can  the  court  say,  in  view  of  language  so 
explicit,  that  the  oath  need  not  be  taken  before  fixing  on  the 
time  and  place  of  sale,  but  may  be  taken  at  any  subsequent 
time?  We  think  the  court  has  no  right  to  take  such  liberties 
with  the  statute,  and  disregard  a  requirement  so  plainly  ex- 
i  ressed,  even  to  sustain  a  sale  otherwise  regular.  To  do  so 
would  be  to  assume  the  province  of  the  law-making  power." 

(Blackman  v.  Eaumann,  22  Wis.  613.) 

To  the  same  effect  is  the  ruling  of  the  supreme  court  of 
Michigan,  Nebraska  as  well  as  that  of  Minnesota,  where  simi- 
lar provisions  of  statute  obtain, 

(Ryder  v.  Flanders,  30  Mich.  336:  Land  Co.  v.  Kurtz,  45  Minn.  380  — 
47  N.  W.  Rep.  1134;   Bachelor  v.  Korb.  78  N.  W.  Rep.  485.) 

and  a  failure  to  comply  with  the  requirement  as  to  the  oath 
may  be  shown  in  a  collateral  action,  the  statute  being  impera- 
tive and  mandatory. 


EFFECT   OF    FAILURE    TO    GIVE    ADDITIONAL    BOND.  291 

(Davis  v.  Hudson,  29  Minn.  27  —  11  N.  W.  Rep.  136;  Montour  v. 
Purdy,  11  Minn.  :;s4 —  88  Am.  Dec.  88;  Eubermann  v.  Evans,  46  Neb. 
7S4  —  (55  X.  YV.  Rep.  1045;  Bachelor  v.  Korb,  78  N.  W.  Rep.  48ft; 
Williama  v.  Reed,  5  Pick.  480;  Ryder  v.  Flanders,  30  Mich.  33(3;  Camp- 
bell v.  Knight,  26  Me.  224. 


EFFECT    Of    FAILURE    TO    GIVE    ADDITIONAL 

BOXD. 

Object  of  Requiring  such  Bond. 

§  317.  Pursuant  to  the  philosophy  of  the  law  and  common 
experiences  of  mankind,  the  statutes  usually  exact  an  ad- 
ditional or  sale  bond  from  an  executor,  administrator  or  guar- 
dian before  making'  the  sale  as  a  safeguard  against  the  mis- 
appropriation of  the  proceeds  realized  from  the  sale,  as  the 
order  or  license  of  sale  increases  the  duties  and  augments  the 
pecuniary  responsibilities  of  the  fiduciary,  beyond  the  meas- 
ure of  his  ordinary  duties  and  responsibilities  incumbent  upon 
him  by  virtue  of  his  official  capacity.  The  expediency  of  the 
statutory  requirement  of  an  additional  bond  is  readily  ap- 
parent, as  it  is  the  policy  of  the  law  to  protect  such  estates 
from  waste  and  sacrifice  at  the  hands  of  these  fiduciaries. 
Accordingly,  where  the  statute  requires  an  additional  bond  to 
be  given  as  a  condition  precedent  to  the  authority  of  the  ad- 
ministrator or  guardian  to  conduct  the  sale,  such  provisions 
have  been  many  times  held  imperative.  Such  sales  are  con- 
sidered adversary  proceedings  as  to  the  parties  interested  and 
the  bond  a  statutory  requirement  intended  for  the  protection 
of  the  heirs  or  ward,  and  a  failure  to  give  the  same  is  held  a 
fatal  omission,  not  cured  bv  a  subsequent  confirmation  of  the 
sale. 

(Bunn  v.  Todd,  115  N.  C.  138  —  20  S.  E.  Rep.  277;  Judge  of  Probate 
v.  Toothhacker,  83  Me.  105  —  22  All.  Rep.  110;  Currie  v.  Stewart,  27 
Miss.  52  —  61  Am.  Dec.  500;  Williamson  v.  Williamson,  3  S.  &  M.  715  — 
41  Am.  Dec.  636:  Rucker  v.  Dyer.  44  Miss.  591;  Buckner  v.  Wood,  45 
Miss.  57;  Barnett  v.  Bull,  81  Ky.  127:  Washington  v.  McCaughan,  34 
Miss.   394 ;   Hamilton  v.   Lockhart,   41    Miss.   460.) 

Under  Healing  Statutes  Want  of  Bond  is  Fatal. 

§  318.  As  we  have  seen  there  is  express  provision  of 
statute  in  at  least  eight  states,  among  them  Wisconsin, 
Michigan,  Minnesota,  Nebraska,  Maine,  Massachusetts  and 


29?  VOID   JUDICIAL   AND   EXECUTION    SALES. 

"Washington,  to  the  effect  that  in  ease  of  an  action  relating 
to  any  real  estate  sold  by  an  administrator  or  executor  in 
which  the  heir  or  any  person  claiming  under  him,  shall  con- 
test the  validity  of  such  sale,  the  same  shall  not  be  avoided  on 
account  of  any  irregularity  in  the  proceedings  provided  it 
shall  appear  among  other  things  —  five  in  number  —  that  rh^ 
fiduciary  gave  a  bond  which  was  approved  by  the  court  before 
the  sale.  In  Oregon  this  provision  of  the  statute  is  extended 
only  to  sales  by  guardians,  but  in  each  of  the  other  states  it 
also  applies  to  guardian's  sales  as  veil  as  to  sales  by  adminis- 
trators and  executor-. 

Under  these  statutes  it  seems  that  all  the  requirements  are 
made  absolutely  essential  and  a  mandatory  construction  is 
put  upon  them  by  the  courts.  On  principle  it  seems  that 
there  is  but  one  of  the  five  essentials,  the  order  of  sale,  that 
is  in  its  nature  jurisdictional,  while  all  the  rest,  including  the 
requirement  respecting  the  additional  bond,  can  on  principle 
be  in  no  way  considered  as  having  any  connection  with  the 
jurisdiction  of  the  court.  But  in  each  of  these  states  the 
failure  to  furnish  the  sale  bond  as  provided  by  the  statute  is 
a  fatal  omission  exposing  the  sale  to  successful  collateral  im- 
peachment. 

(Weld  v.  Johnson  Mfg.  Co..  84  Wis.  537  —  54  N.  W.  Rep.  335;  Melms 
v.  Pfister,  59  Wis.  186  —  18  N.  W.  Rep.  255:  Land  Co.  v.  Kurtz.  45 
Minn.  380  —  47  N.  W.  Rep.  1134;  Williams  v.  Morton.  3S  Me.  47  —  61 
Am.  Dee.  229;  Babcock  v.  Cobb.  11  Minn.  347;  Williams  v.  Reed.  5 
Pick.  480;  Gager  v.  Henry,  5  Sawyer.  237;  Walker  v.  Goldsmith,  14 
Ore.  125  — 12  Pac.  Rep.  537;  Perkins  v.  Fairfield.  11  Mass.  226;  Bachelor 
v.  Korb,  78  X.  W.  Rep.  485.) 

Where  no  Healing  Statutes  Exist  Want  of  Bond  not  Fatal. 

§  319.  The  doctrine  announced  in  the  last  section  is  ex- 
clusively based  upon  the  peculiar  requirements  of  statute, 
and  therefore,  when  unsupported  by  such  provisions  the  rule 
announced  that  a  sale  by  an  administrator,  executor  or  guar- 
dian without  a  bond  is  void  is  unsustainable  and  wholly  un- 
tenable upon  principle  and  authority,  for  the  jurisdiction  of 
the  court  having  theretofore  been  properly  invoked,  the  bond 
is  entirely  foreign  to  the  question  of  jurisdiction,  and  mani- 
festly but  a  mere  irregularity  when  not  given  and  obviously 
insufficient  to  make  the  proceedings  of  sale  void,  though  of 
sufficient  gravity  to  warrant  a  denial  of  confirmation  if  prop- 


EFFECT   OF    FAILURE   TO   GIVE    ADDITIONAL    BOXD.  293 

erly  brought  to  the  attention  of  the  court.  Being-  hut  an 
irregularity,  the  sale  by  reason  thereof  is  at  besl  but  voidable, 
and  the  infirmity  cured  by  confirmation  so  thai  it  can  not 
be  attacked  in  a  collateral  way  in  any  event.  In  this  regard 
the  supreme  court  of  Iowa  in  a  comparatively  late  case  said: 
"  In  the  absence  of  a  sale  bond,  it  would  doubtless  be  error  to 
approve  the  sale;  but  where  the  jurisdiction  attached,  and  the 
sale  has  been  approved,  it  can  not,  we  think,  be  successfully 
attacked  in  a  collateral  proceeding  ". 

(Hamiel  v.  Donnelly,  75  Iowa,  03  —  39  N.  W.  Rep.  210.) 

And  the  principle  here  announced  is  also  maintained  in 
other  late  and  well-considered  cases  in  both  state  and  federal 
courts. 

(Arrowsmith  v.  Gleason,  129  U.  S.  86  —  9  Sup.  Ct.  Rep.  237;  David- 
son v.  Rates.  Ill  Ind.  391  —  12  N.  E.  Rep.  687;  Arrowsmith  v.  Har- 
moning.  42  Ohio  St.  254:  Howbert  v.  Heyle,  47  Kan.  58  —  27  Pac.  Rep. 
116;  Bunce  v.  Bunee,  59  Iowa,  533  —  13  N.  W.  Rep.  705;  Wyman  v. 
Campbell,  6  Port.  219  —  31  Am.  Dee.  677:  Ex  parte  Maxwell,  37  Ala. 
362  —  79  Am.  Dec.  62;  Maurr  v.  Danish.  26  Ohio  St.  636;  West  v. 
Cochran,  104  Pa.  St.  482;  Rahwn  v.  Com.,  102  Pa.  St.  450.) 

If  the  master  in  chancery  has  failed  to  file  his  bond  as 
such  before  the  sale  it  is  not  a  defect  which  will  expose  the 
proceedings  to  collateral  attack,  after  the  same  has  been  ap- 
proved by  the  chancellor. 

(Nichol   v.   Nichol,    8    Paige.    349.) 

In  Indiana  it  is  held  that  where  a  bond  was  required  from 
the  administrator  or  guardian  as  a  condition  precedent  to  the 
sale  by  him  of  the  real  estate  of  the  ward  or  decedent  under 
the  license  of  the  court,  but  no  bond  was  in  fact  given,  yet 
when  it  appeared  that  the  sale  was  made  and  duly  confirmed, 
and  the  proceeds  received  therefrom  have  been  faithfully  ac- 
counted for,  the  sale  can  not  be  said  to  be  void,  because  every- 
thing has  been  accomplished  without  the  bond  that  eventually 
could  have  been  with  it.  the  only  object  being  to  guard  against 
the  possibility  of  misappropriation  of  the  funds,  and  the  ward 
or  heirs  having  received  the  money,  they  have  no  equity  in  a 
suit  to  recover  the  property. 

(Marquis  v.  Davis.  113  lml.  219  —  15  N.  E.  Rep.  251;  Dequindre  v. 
Williams,  31  Ind.  444;  Foster  v.  Birch,  14  Ind.  445;  Davidson  v.  Bates, 
111  Ind.  391  —  12  N.  E.  Rep.  687.) 


294  VOID   JUDICIAL    AND    EXECUTION    SALES. 

But  on  the  other  hand,  if  the  proceeds  have  been  misappro- 
priated or  lost  by  the  guardian,  when  he  has  failed  to  give  the 
additional  bond,  the  ward  may  treat  the  sale  as  void,  but  it 
can  be  avoided  only  in  a  direct,  and  not  in  a  collateral  pro- 
ceeding. 

(Marquis  v.  Davis,  113  Ind.  219  —  15  ¥.  E.  Eep.  251;  McKeever  .  r. 
Ball,  71  Ind.  398.) 

EFFECT  OF  WANT  OF  NOTICE  OF  SALE. 

The  Object  of  the  Notice  of  Sale. 

§  320.  Manifestly,  the  object  of  the  statutory  requisite  for 
notice  of  the  time  and  place  of  sale  is  to  disseminate  the  in- 
telligence of  the  occurrence  of  the  sale  so  that  a  better  price 
will  be  realized,  as  a  spread  of  the  knowledge  of  the  sale  pro- 
duces competition  thereat.  The  purpose  of  the  notice  is  prin- 
cipally, then,  to  prevent  a  sacrifice  of  the  debtor's  property. 
The  notice  of  sale  is  almost  a  universal  requisite  in  judicial 
and  execution  sales.  In  judicial  sales  the  infirmity  caused 
by  a  defective  notice,  or  the  entire  omission  of  the  notice,  is 
cured  by  the  subsequent  confirmation,  though  if  objection 
to  the  confirmation  is  made  in  time  the  court  will  unques- 
tionably refuse  to  sanction  it  because  of  the  defect;  and  so 
long  as  there  is  a  retention  of  jurisdiction  in  the  court  it  will 
entertain  a  motion  to  vacate  the  sale  for  a  want  of  notice  or  a 
radical  defect  in  the  same.  Or  in  the  exercise  of  its  super- 
visory power  the  court  may  set  the  sale  aside  even  when  no 
objections  are  raised  upon  this  ground. 

(Helmer  v.  Rehm.  14  Neb.  219  —  15  N.  W.  Eep.  344;  Moffitt  v.  Moffitt, 
69  111.  641;  Brubaker  v.  Jones,  23  Kan.  411;  Jackson  v.  McGruder,  51 
111.  55;  Bland  v.  Muncaster,  24  Miss.  62—57  Am.  Dec.  162;  Morrow  v. 
Weed,  4  Iowa.  77  —  66  Am.  Dec.  122;  Hudgens  v.  Jackson.  51  Ala.  514; 
Cooley  v.  Wilson.  42  Iowa.  428;  Hanks  v.  Neal,  44  Miss.  212;  McNair 
v.  Hunt,  5  Mo.  301.) 

Purchaser  Free  from  Fault. 

§  321.  If  fault  can  not  be  imputed  to  the  purchaser  at  an 
execution  sale  fo«  having  participated  in  occasioning  it,  the 
circumstance  that  there  was  a  failure  to  publish  the  notice  of 
sale  required  by  statute  will  not  defeat  the  sale,  according 
to  the  great  weight  of  judicial  opinion  in  America.     Statutes 


EFFECT  OF  WANT  OF  NOTICE  OF  SALE.  295 

prescribing  notice  of  sale  have  generally  been  construed  as  of 
directory  import,  and  a  non-compliance  therewith  but  an  ir- 
regularity which,  although  amply  grave  to  warrant  the  court 
in  vacating  the  sale  if  moved  to  that  effect  in  time,  but  it  can 
not  affect  the  rights  of  innocent  purchasers  without  notice, 
when  assailed  in  a  collateral  proceeding. 

(Rounsaville  v.  Hazen,  33  Kan.  71  —  5  Pac.  Rep.  422;  .Morris  v.  Has- 
tings, 70  Tex.  26  —  7  S.  W.  Rep.  649;  Quarks  v.  Hiern,  70  Miss.  S91  — 
14  So.  Rep.  23;  White  v.  Farley,  si  Ala.  563  —  8  So.  Rep.  215;  Evans 
v.  Robberson,  92  Mo.  192  —  4  S.  W.  Rep.  941;  Herrick  v.  Davis,  27  Ga. 
107  —  73  Am.  Dee.  726;  Brooks  v.  Rooney.  11  Ga.  423  —  56  Am.  Dec. 
430;  Huffman  v.  Gaines,  47  Ark.  226  —  1  S.  W.  Rep.  100;  Howard  v. 
North,  5  Tex.  290  —  51  Am.  Dec.  709:  Draper  v.  Bryson,  17  Mo.  71  — 
57  Am.  Dee.  257;  Minor  v.  Natehes,  4  S.  &  M.  602  —  43  Am.  Dec  488; 
Maddox  v.  Sullivan.  2  Rich.  Eq.  4  —  44  Am.  Dec.  234;  Smith  v.  Randall, 
6  Cal.  47  —  65  Am.  Dec.  475:  Ware  v.  Bradford,  2  Ala.  676  —  36  Am.  Dec. 
427;  Solomon  v.  Peters,  37  Ga.  255.) 

Pursuant  to  this  rule  an  innocent  vendee  of  the  original  pur- 
chaser having  no  notice  of  any  irregularity  will  be  protected 
in  any  event,  whether  relief  is  sought  against  him  by  motion 
in  the  original  case,  or  the  jurisdiction  of  equity  is  invoked 
to  accomplish  the  same  purpose,  though  where  the  judgment 
creditor  himself  becomes  the  purchaser  his  assignee  is  charge- 
able with  notice,  or  where  the  attorney  of  record  of  the  plain- 
tiff becomes  the  purchaser  he  is  chargeable  with  notice  of  ir- 
regularities, whether  he  has  actual  notice  thereof  or  not. 

(Collins  v.  Smith,  57  Wis.  2S4  — 15  N.  W.  Rep.  192;  Huffman  v. 
Gaines,  47  Ark.  226  —  1  S.  W.  Rep.  100;  Smith  v.  Huntoon,  134  111.  24 
—  24  N.  E.  Rep.  971:  Quarles  v.  Hiern,  70  Miss.  891  —  14  So.  Rep.  23; 
Branch  v.  Foust,  130  End.  538  —  30  N.  E.  Rep.  631;  Morris  v.  Roby,  73 
111.  402:  Wright  v.  Dick,  116  Ind.  538—19  N.  E.  Rep.  308;  Nelson  v. 
Bronneburg,  81  Ind.  193;  Mixer  v.  Sibley,  53  111.  61;  Hudepole  v.  Water 
Co.,  94  Cal.  588  —  29  Pac.  Rep.  1025.) 

Fraud  and  Collusion  Imputed  to  Purchaser. 

§  322.  Even  where  notice  of  sale  is  not  considered  an  in- 
dispensable requisite  to  a  valid  execution  sale,  yet,  if  such 
irregularity  is  the  result  of  a  fraudulent  and  collusive  scheme 
concocted  by  the  purchaser  himself,  or  participated  in  by  him, 
and  the  property  was  disposed  of  for  a  grossly  inadequate 
price,  the  vendee  and  these  purchasing  from  him  with  notice, 
as  a  necessary  consequence,  hold  under  an  illegal  and  void 


296  VOID   JUDICIAL   AND   EXECUTION   SALES. 

sale  for  fraud  which  may  be  vacated  by  a  proper  proceeding 
for  that  purpose. 

(Morris  v.  Hastings,  70  Tex.  26  —  7  S.  W.  Eep.  649;  Stone  v.  Day, 
69  Tex.  13  —  5  S.  W.  Rep.  642;  Hayden  v.  Dunlop,  3  Bibb,  216.) 

In  Administrators',  Guardians'  and  Other  Judicial  Sales. 

§  323.  In  judicial  sales  the  fact  as  to  whether  or  not  there 
is  a  sale  at  all  is  dependent  upon  the  subsequent  entry  of  the 
order  of  confirmation,  at  the  granting  of  which  all  objections 
may  be  heard,  and  the  entire  proceedings  are  considered  by 
the  court,  so  that  the  legitimate  effect  of  the  confirming  order 
is  that  the  sale  is  regular  and  unincumbered  with  any  irregu- 
larities. Expediency  and  the  force  of  reason  dictate  this  to 
be  the  proper  rule  to  be  invoked,  that  the  investigation  re- 
specting the  existence  and  sufficiency  of  the  notice  of  sale  is 
limited  by  the  order  of  confirmation,  which,  when  once  en- 
tered, precludes  further  inquiry  as  to  the  notice  or  its 
sufficiency. 

What  is  true  in  this  regard  as  to  sales  in  chancery  is  also 
true  as  regards  sales  by  administrators,  executors  and  guar- 
dians, for  if  these  sales  may  be  assailed  after  confirmation  be- 
cause of  a  defective  notice  or  a  want  of  notice  of  sale,  the 
utter  futility  of  the  confirming  order  is  at  once  apparent. 
Subsequent  assault,  if  permitted,  would  involve  a  re-examina- 
tion into  the  issues  raised  and  determined  by  a  court  of  com- 
petent jurisdiction,  which  would  be  equivalent  to  a  nullifica- 
tion of  the  original  order  of  confirmation. 

(Hudcrens  v.  Jackson,  51  Ala.  514  —  Mofiitt  v.  Moffitt.  69  111.  641; 
Morrow  v.  Weed,  4  Iowa,  77  —  66  Am.  Deo.  122;  Curd  v.  Lackland,  49 
Mo.  451;  Minor  v.  Selectmen,  4  rt.  &  M.  602;  Bland  v.  Muncaster,  24 
Miss.  62  —  57  Am.  Doc.  162;  Hanks  v.  Neal,  44  -Miss.  212;  McNair  v. 
Hunt,  5  Mo.  301;  Cooley  v.  Wilson,  42  Iowa,  42S;  Phillips  v.  Coffee, 
17  III.   154  —  63  Am.  Dee.   357;    Lum  v.   Reed,   53   Miss.   73.) 

In  States  Having  a  Healing  Statute  Notice  Essential. 

§  324.  In  all  those  states  having  healing  statutes  as  to  sales 
by  administrators,  executors  and  guardians  wherein  one  of  the 
five  essentials  is  a  notice  of  sale,  the  want  of  such  notice  is  a 
defect  of  as  grave  a  nature  as  the  want  of  the  bond  or  the  oath. 
As  to  all  these  essentials  enumerated  in  the  statute  the  pro- 
ceedings of  sale  are  considered  of  an  adversary  nature  as  to 
the  heir  or  ward,  and  the  defect  of  the  omission  of  the  notice 


EFFECT  OF  WANT  OF  NOTICE  OF  SALE.  2'.) 7 

or  its  fatal  defect,  is  not  susceptible  of  being  cured  by  subse- 
quent confirmation  of  the  sale  by  the  court.  An  omission  of 
any  one  of  the  five  enumerated  essentials  is  fatal  and  the  sale 
must  fall  to  the  ground  in  consequence  thereof,  the  statutory 
requirement  as  to  notice  being  considered  mandatory. 

(Tracy  v.  Roberts,  88  Me.  310  —  34  Atl.  Rep.  6S;  Hubermann  v.  Evans, 
46  Neb.  7S4  — 65  N.  W.  Rep.  1045:  Walker  v.  Goldsmith,  14  Ore.  125  — 
12  Pac.  Rep.  537;  Montour  v.  Purely.  11  Minn.  384  —  88  Am.  Dec.  88; 
Davis  V.Hudson,  29  Minn.  27  —  11  N.  W.  Rep.  136;  Hartley  v.  Croze, 
38  Minn.  325  —  37  N.  W.  Rep.  449;  McGmbb  v.  Bray.  36  Wis.  333; 
Hobart  v.  Upton.  2  Sawyer,  302;  Thomas  v.  Le  Barron,  8  Met.  358.) 

Notice  an  Imperative  Requirement. 

§  325.  In  some  states  it  is  contended  that  the  legal  notice 
of  sale  required  by  the  statute  is  an  imperative  requisite  —  a 
substantial  right  conferred  upon  the  judgment  debtor  by  law 
and  not  capable  of  being  taken  away  or  disregarded  by  con- 
struction —  without  which  the  proceedings  are  impregnated 
with  an  inherent  defect  wholly  vitiating  the  sale.  The  fact 
that  the  execution  defendant  had  knowledge  of  the  sale,  or 
even  was  present  thereat  and  refrained  from  objecting  thereto 
because  of  the  want  of  a  prior  legal  notice  of  sale,  under  this 
line  of  cases,  is  entirely  immaterial.  Only  conduct  equivalent 
to  a  waiver  of  notice  will  preclude  subsequent  inquiry  into 
the  proceedings  where  no  notice  was  given.  By  the  tenor  of 
these  decisions  the  statutory  provision  regarding  notice  of  sale 

is  mandatory. 

(Bowman  v."  Knott.  66  X.  W.  Rep.  457:  Carney  v.  Carney,  10  Yerg. 
491  —  31  Am.  Dec.  590:  Smith  v.  Gates.  21  Pick.  55;  Birch  v.  Bates.  22 
La.  Ann.  198:  Mitchell  v.  Lipe.  8  Yerg.  179  —  29  Am.  Dec.  116;  Carrier 
v.  Esbaugh,  70  Pa.  St.  239;  Henderson  v.  Hay,  41  N.  J.  L.  387 ;  Lloyd  v. 
Anglin.  7  Yerg.  428;  Griswold  v.  Sundback,  6  S.  Dak.  269  —  60  N.  W. 
Rep.    106S;    Farquhar   v.    Toney,    5   Humph.    502.) 

Diametrically  the  opposite  is  assorted  in  other  oa«es  where 
it  is  held  that  the  failure  to  give  the  statutory  notice  is  not 
fatal  to  the  sale. 

(Frink  v.  Roe.  70  Cal.  296  —  11  Pac  Rep.  820;  Smith  v.  Randall,  6 
Cal.    47—65    Am.    Dec.    475.) 

Notice  May  be  Waived. 

§  326.  Xotice  of  sale  being  provided  for  the  benefit  of  the 
judgment  debtor  it  is  a  requirement  which  may  be  waived, 
as  for  instance,  openly  acquiescing  in  the  sale  or  knowingly 


298  VOID  JUDICIAL    AND   EXECUTION    SALES. 

accepting  the  "whole  or  a  part  of  the  proceeds  realized  from 
the  sale  of  the  property. 

(Huffman  v.  Gaines,  47  Ark.  226  —  1  S.  W.  Rep.  100;  Palmerton  v. 
Hoop,  131  Ind.  23  —  30  N.  E.  Rep.  874;  Ogden  v.  Dupuy,  99  Ala.  se- 
ll So.  Rep.  419;  Bumb  v.  Gard,  107  Ind.  575  —  8  N.  E.  Rep.  713;  Pate 
v.  Hinson,  104  Ala.  599  —  16  So.  Rep.  527;  Southard  v.  Perry,  21  Iowa, 
488  —  89    Am.    Dec.    587;    Turner    v.    Watkins,    31    Ark.    429.) 

But  if  such  waiver  operates  prejudicially  to  the  interests  of 
existing  creditors  the  sale  may  be  avoided,  notwithstanding 
the  defendant'?  waiver  of  the  irregularity.  Upon  the  same 
principle  a  debtor  in  failing  circumstances  is  prohibited  from 
dispensing  with  any  of  the  statutory  formalities  in  a  sale  of 
his  property  made  under  execution,  as  this  would  constitute  a 
fraud  upon  his  creditors. 

(Gibba  v.  Neely,  7  Watts.  305;  McMichael  v.  MeDermott.  17  Pa.  St. 
353  —  55  Am.  Dee.  560;  Succession  of  Hiligsberg,  1  La.  Ann.  340.) 


TIME  AKD  PLACE  BIDS  RECEIVABLE. 

Bid  Must  be  Made  at  Time  of  Sale. 

§  327.  Public  policy  requires,  and  the  law  contemplates 
scrupulous  impartiality  upon  the  part  of  the  officers  conduct- 
ing sales  under  the  administration  of  the  law,  and  to  avert  the 
possibilities  of  collusion  between  the  purchaser  and  the  sell- 
ing officer,  the  bid  should  be  made  at  the  time  of  sale. 
Whether  or  not  the  proffered  bid  shall  be  accepted  must  be 
determined  by  the  officer,  and  may  depend  upon  the  peculiar 
circumstances  with  which  the  transaction  is  environed.  To 
make  such  determination  with  absolute  impartiality  as  he  is 
presumed  to  do  in  contemplation  of  law,  he  is  prohibited  from 
entertaining  any  bid  not  made  at  the  time  of  sale,  but  which 
has  been  previously  submitted  to  him  for  consideration.  A 
consideration  of  a  previously  offered  bid  not  made  public 
would  make  him,  in  theory  of  law,  the  agent  of  the  absent  pur- 
chaser, which  the  law  will  not  tolerate.  In  contemplation  of 
law  the  sheriff,  in  making  the  sale,  is  the  agent  of  both  the 
judgment  debtor  and  creditor,  and  as  such  is  bound  to  act  with 
the  utmost  fidelity  and  impartiality.  The  assumption  on  his 
part,  of  the  position  of  agent  for  a  third  party,  the  absent  bid- 
der, would  be  repugnant  to  the  principles  of  morality  and  good 


TIME   AND   PLACE   BIDS   RECEIVABLE. 


299 


conscience,  and  violative  of  the  spirit  if  not  the  letter  of  the 
law. 

(Harrison  v.  McHenry,  9  Gait  164  —  52  Am.  Dec.  435;  Hobbs  v.  Beavers, 
2  Ind  142  —  52  Am.  Dec.  500:  Dorsett  v.  Gerrard,  85  Ga.  734  —  11  S.  E. 
Rep.  768;  Wilson  v.  Twity.  3  Hawks,  44-14  Am.  Dec.  509;  Mayor  v. 
Huff,  CO  Ga.  221;  Seaman  v.  Riggins,  1  Green.  Ch.  214  —  34  Am.  Dec. 

200. ) 

But  the  purchaser  may  send  his  bid  in  writing  with  the 
person  elected  or  appointed  to  conduct  the  sale,  and  if  the 
same  is  publicly  announced  by  the  officer  as  a  bid  and  the  land 
is  struck  off  upon  such  submitted  bid  as  the  highest  and  best, 
the  sale  is  valid. 

(Wenner  v.  Thornton,  98  111.  156;  Dickerman  v.  Burgess,  20  111.  266.) 

The  officer  has  absolutely  no  power  in  an  execution  sale 
to  receive  a  conditional  bid,  but  is  restricted  to  a  consideration 
exclusively  of  unconditional  bids  for  cash. 

(Dewey  v.  Willoughby,  72  111.  250;  Swope  v.  Ardery,  5  Ind.  213;  Chap- 
man v.  Harwood,  8  Blackf.  82.) 

Plaintiff's  Bid  when  no  Other  Persons  Present. 

§  328.  There  is  authority  to  the  effect  that,  as  execution 
sales  must,  under  the  policy  of  the  law,  be  public,  the  sale  is 
void  unless  there  are  bidders  thereat  other  than  the  judgment 
creditor,  who  is,  in  law,  considered  the  controller  of  the  sale. 
That  when  the  sale  is  made  to  the  judgment  creditor  in  the 
absence  of  all  other  bidders  or  bystanders,  the  presumption 
of  collusion  between  such  purchasing  creditor  and  the  sheriff 
is  irresistible  and  conclusive,  and  the  sale  void. 

(M,. Michael  v.  McDermott,  17  Pa.  St.  353  —  55  Am.  Dec.  560;  Ricketts 
v.   Unangst,    15   Pa.   St.   90  —  53   Am.   Dec.    572.) 

This  is  a  doctrine  not  only  against  principle  and  reason  but 
also  in  opposition  to  the  current  of  authority,  for  if  the  sale 
is  otherwise  fair  and  regular,  there  can  be  no  valid  reason 
assigned  why  it  should  be  adjudged  void  because  the  judgment 
creditor  was  the  only  bidder  at  the  sale.  Pursuant  to  the 
more  recent  cases  the  sale  under  circumstances  of  this  kind  is 
valid. 

(Power  v.  Larabee.  3  N.  Dak.  562-57  N.  W.  Rep.  789;  Learned  v. 
Geer,    139   Mass.   31  —  29   N.    E.    Rep.    215.) 


300  VOID   JUDICIAL   AXD    EXECUTION    SALES. 


SALES  MADE  AT  AN  IMPROPER  OR  UNAUTHOR- 
IZED PLAOE. 

In  Judicial  Sales  an  Irregularity  Merely. 

§  329.  There  is  an  irreconcilable  conflict  of  authority  as 
to  the  effect  upon  the  sale  if  the  same  is  conducted  at  an  un- 
authorized or  improper  place,  some  of  them  contending  that 
it  is  only  an  irregularity  making  the  sale  merely  voidable, 
while  others  maintain  that  it  makes  the  sale  altogether  nuga- 
tory. In  sales  of  land  under  decrees  or  orders  of  court  when 
the  place  of  sale  is  designated  therein,  or  when  the  notice 
designates  a  particular  place,  the  sale  must  occur  thereat,  or 
else  it  is  beyond  a  peradventure  of  doubt  irregular  and  will 
be  vacated  if  application  therefor  is  made  in  due  time  by 
any  one  interested.  The  sale  occurring  at  an  improper  or  un- 
authorized place  is  manifestly  more  pernicious  in  its  effects 
upon  the  validity  of  sales  under  executions  than  in  technical 
judicial  sales,  for  in  the  latter  the  whole  proceedings  of  the 
selling  officer  under  the  decree  or  order  are  brought  up  to  be 
passed  upon  when  the  sale  comes  up  for  confirmation,  and 
when  confirmeed,  the  irregularity,  not  being  of  a  jurisdictional 
nature,  is  cured. 

(Morrow  v.  McGregor,  47  Ark.  67  —  4  S.  W.  Rep.  40:  McCullough  v. 
Estes,  20  Ore.  349  —  25  Pac.  Rep.  724 ;  Brown  v.  Christie,  27  Tex.  73  — 
84  Am.   Dec.   G07.) 

Execution  Sales  of  Land  Outside  of  County  are  Void. 

§  330.  Undoubtedly  by  the  decided  weight  of  judicial  au- 
thority a  sale  of  land  under  execution  made  outside  of  the 
territorial  limits  of  the  county  wherein  the  particular  premises 
sold  are  situated  is  absolutely  void,  being  in  contravention 
of  the  provisions  of  statute  in  this  regard  and  incapable  of 
confirmation  or  ratification  and  subject  to  collateral  impeach- 
ment, if  the  face  of  the  record  discloses  the  defect.  The  rea- 
son assigned  is  that  the  jurisdiction  under  the  process  is  simply 
co-extensive  with  the  limits  of  the  county,  and  any  authority 
exercised  under  it  beyond  the  confines  of  such  comity  is  ex- 
tra-territorial and  unauthorized.  Being  void  the  circumstance 
of  acquiescence  of  the  judgment  debtor  will  nor  infuse  into  it 
any  validity.     Statute-  prescribing  the  place  where  execution 


301 


SALES    MADE    AT    AX    IMPEOPEE    OR    IN  AUTHORIZED    PLACE. 

sales  shall  be  held  have  been  generally  construed  as  imperative 
and  mandatory,  and  consequently  a  sale  made  in  violation  of 
their  provision  in  this  particular  is  void. 

(Moody  v.  Moeller,  72  'lex.  635-  L0  S.  W.  Rep.  727;  Orr  v.  Owens, 
128  Ind  ""9  —  27  N.  E.  Rep.  493;  Oldfield  v.  Eulert,  Us  111.  614  —  36 
N  E  Rep.  615;  Terry  v.  Cutler,  4  Tex.  Civ.  App.  570-23  B.  W.  Rep. 
539;  Sinclaire  v.  Stanley,  64  Tex.  67;  Short  v.  Hepburn,  75  Fed.  Rep. 
113-  Terry  v.  Cutler,  39  S.  W.  Rep.  L52;  Menges  v.  Oyster,  4  W.  &  b. 
20-39  Am.  Dec.  5G;  Aired  v.  Montague,  20  Tex.  732-84  Am.  Dec. 
603-  Howard  v.  North,  5  Tex.  290-51  Am.  Dec.  769;  Thacker  v. 
Duvol.  50  Ind.  30;  Jenners  v.  Doe.  9  Ind.  461;  Hanby  v.  Tucker,  23 
Ga.  132  —  68  Am.  Dec.  514;  Holmes  v.  Taylor,  4S  Ind.  169.) 

But  a  judicial  sale  where  the  officer  is  authorized  to  do  so 
by  the  decree  or  order,  is  not  void  for  having  been  held  out- 
side of  the  county  wherein  the  land  lies. 

(Bank  v.  Trapier,  2  Hill  Ch.  25;  Goldtree  v.  McAllister.  S6  Cal.  93  — 
24  Pae.  Rep.  S01;  McCullough  v.  Estes,  20  Ore.  349-25  Pac.  Rep.  724.) 

Of  Personal  Property  Sold  under  Execution. 

§  331.  To  prevent  unnecessary  sacrifice,  and  in  order  to 
propitiate  to  facilitv  for  inspection  by  intending  purchasers 
at  forced  sales  of  personal  property,  enabling  them  the  better 
to  appreciate  the  nature  and  qualities  of  the  same,  the  prop- 
er! v  should  be  located  at  or  near  where  the  sale  takes  place, 
and  if  not  present  it  is  itself  amply  sufficient  to  invalidate  the 
sale  pursuant  to  statute,  and  is  also  condemned  by  the  com- 
mon law  without  the  aid  of  statute.  Such  sales  purport  to  be 
public  and  the  courts  are  inclined  to  enforce  the  rule  with 

marked  vigor. 

(Penney  v.  Earle,  S7  Me.  167-32  Atl.  Rep.  879;  Dawrv  v.  Ellis,  8o 
Me  5oo_27  Atl.  Rep.  518;  Foster  v.  Mabe.  4  Ala  402-37  Am.  Dec. 
749-  Wright  v.  Mack,  95  Ind.  322;  Kean  v.  Newell,1*  Mo.  754-14  Am. 
Dec'  321-  Phillips  v.  Brown,  74  Me.  549;  Murphy  v.  Hill,  77  Ind.  129; 
Hazzard  v.  Benton,  4  Harr.  62;  Eads  v.  Stephens.  63  Mo.  90.) 

Hence  sales  of  personal  property  made  under  ordinary  exe- 
cutions, when  the  property  was  not  present  or  at  least  located 
with  sufficient  proximity  to  the  place  of  sale  to  admit  of  con- 
venient examination,  have  been  decided  by  the  vast  pre- 
ponderating current  of  authority  to  be  contrary  to  public 
policy  and  unequivocally  void. 

(Alston  v.  Morphew,  113  N.  C.  460-18  S.  E.  Rep.  335; ^Yeomans  v. 
Bird,  81  Ga.  340  -  6  S.  E.  Rep.  179;  Morrow  v.  McGregor,  47  Ark.  G,  - 


302  VOID  JUDICIAL   AND   EXECUTION   SALES. 

4  S.  W.  Rep.  49;  Rowan  v.  Refeld,  31  Ark.  648;  Kennedy  v.  Clayton, 
29  Ark.  270 ;  Collins  v.  Montgomery,  2  N.  &  McC.  39 ;  Bostwick  v.  Keizer, 
4  J.  J.  Marsh.  597  —  20  Am.  Dec.  237;  Brown  v.  Pratt,  4  Wis.  513  — 
65  Am.  Dec.  3.30;  Newman  v.  Hook.  37  Mo.  207  —  90  Am.  Dec.  378; 
Blanton  v.  Morrow,  7  Ired.  Eq.  47  —  53  Am.  Dec.  391;  Ainsworth  v. 
Greenlee,  3  Murph.  470  —  9  Am.  Dec.  615;  Cresson  v.  Stout.  17  Johns. 
116  —  8  Am.  Dec.  373;  Baker  v.  Casey,  19  Mich.  220;  Murphy  v.  Hill, 
77  Ind.  129;  Winfield  v.  Adams,  34  Mich.  437;  Shinier  v.  Mosher,  39  Hun, 
155;   Gaskell  v.  Aldrich,  41  Ind.  338;   Tibbitts  v.  Jageman,   5S  HI.   43. 

Though  it  is  held  in  Illinois  and  Missouri  that  where  the 
sale  was  conducted  in  the  proper  county,  after  a  proper  lew, 
the  fact  that  the  property  was  not  present  at  the  time  of  sale 
did  not  make  the  sale  absolutely  void. 

(Cook  v.  Timmins,  67  111.  203;  Eads  v.  Stephens.  63  Mo.  90.) 

So  a  sale  of  personal  property  under  the  process  from  a 
justice's  court,  where  the  sale  is  made  outside  of  the  township 
in  which  the  justice  resides  is  void. 

(Beamer  v.  Winter.  41  Kan.  596  —  21  Pac.  Rep.  1078;  Paulsen  v.  Hall, 
39  Kan.  365  —  18  Pac.  Rep.  225;  Beamer  v.  Winter,  41  Kan.  297  —  21 
Pac.  Rep.  251. 

SALES   WITHOUT   APPRAISEMENT    OR   INQUISI- 
TION. 

Are  Void  by  the  Current  of  Authority. 

§  332.  In  several  states  statutes  have  been  enacted  provid- 
ing that  before  an  execution  sale  can  be  made  an  appraise- 
ment or  inquisition  of  the  land  must  be  made,  and  when  sold 
the  minimum  amount  that  can  bo  lawfully  accepted  must  bo 
not  less  than  a  certain  proportionate  part  of  the  appraised 
value.  The  object  of  such  statutes  is  the  prevention  of  sacri- 
fice of  the  defendant's  property  so  frequently  attending  a  com- 
pulsory sale  under  the  coercive  process  of  the  law. 

These  statutes  have  generally,  though  not  universally,  boon 
construed  as  mandatory,  and  a  sale  made  in  contravention 
thereof  by  reason  of  an  entire  omission  of  all  appraisement, 
or  a  sale  for  a  sum  less  than  the  prescribed  proportion  of  the 
value  of  the  property  as  ascertained  by  the  inquisition,  is 
illegal  and  void,  unless  the  appraisement  has  been  waived  by 
the  judgment  debtor. 

(De  Jarnette  v.  Yernor,  40  Kan.  224  —  10  Pac.  Pep.  666;  Sprotl  v. 
Reid,  3  G.  Greene,  489  —  56  Am.  Dec.  549;   Bank  v.  Huntoon.  35  Kan. 


SALES   WITH0U1    APPEAISEMENT   OK    INQUISITION.  303 

577-11  Pac  Rep.  369;  Bank  v.  Hamer,  70  N.  W.  Rep.  407:  Hefferlm 
C  Unldl;,.,  ,  L  401  -85A».l^^;lto«T^*«N* 
466-64  N.W.  Rep.  1113;  Brown  v.  Butters,  40  [owa,  544;  Gardne,  v. 
Si,k  54  Pa.  St.  506;  Smith  v.  <  ockrell,  6  Wall.  756;  Railway  J  o.  - 
I  ,',  •  ,,„1  23-  Wolf  v.  Payne,  35  Pa.  St.  97;  Collier  v.  Stonbough, 
«How M ^^Mlhe;rHolmes,?5lnd.458;Gantleyv.Ewing,3How. 

„  ,        i  n    ■    ••  p.l.ickf    1-   Baird  v.  Lent,  b   waits,  *<s<s, 

13  Ind.  14t ;   Babcock  \ .  1  oe,  i   tsia<  ki.     ■ 

Tyler  v.  Wilkeson,  27   [nd.  450.) 
*  But  of  emu-,  tlie  appraisement  can  not  be  lawfully  waived 
by  a  debtor  in  failing  circumstances,  as  he  can  not  waive  any 
of  the  formalities  established  by  law  for  the  forced  sale  of  his 
•nronertv  to  pay  his  obligations. 

17  Pa.  St.  353  —  55   Am.   Dec.   06O;   dlbM   V.    -mau. 

Are  also  Held  Voidable  Merely. 

8  333    While  a  decided  preponderance  of  the  authorities 
favor  the  doctrine  that  appraisement  statutes are  mandatory, 
there  arc  other  cases  which  consider  them  directory  merely 
Ind  hold  a  sale  made  in  disregard  of  the  protons  voniable 
only  bat  not  void.     Where  this  is  the  rale  if  the  defendant 
permits  his  property  to  he  sold  under  the  coercive  process  of 
\"  in  violation  of  the  mandates  of  the  law  ,n  tins  regard  la- 
can  no,  question  the  sale  when  once  rally  eonsnmmated  a 
against  on  innocent  purchaser  in  no  way  connected  with  the 
!nit  as  a  partv.     While  formerly  it  was  the  rule  ,n  Ind  ana 
that  these  statutes  were  mandatory,  the  more  recent  ea.es  hold 
'.tin  hnt  directory;  and  in  Ohio  and  Teas  the  latter  view 

*•£«■»»-  ^ ■^^;i'';;,^;'h;  r;,,  v.    ,'„  7l 

26  N    E    Rep.  769;  Elston  v.  Castor,  101  Ind.  431  .    tienj 
I,,,  is-   Cox  v.   Bird,  88    Ind.    142;   Stoltsenburg  v.   Stoltsenburg    75 
;  538%^  v.  Macaiester,  9  Ohio.  19;  Ayers  v.  Duprey,  27  T~  593 
86    v»    Dee    657;   Allen  v.  Parish,  3  Ohio,  188;    Danieb  v  .  McBam,  - 

Waiver  of  Appraisement.  _ 

8  334  Tt  is  sometimes  hold  that  as  the  appraisemen  laws 
are  enacted  for  the  benefil  and  protection  of  debtors  that  hey 
may  waive  the  right  of  appraisement,  cither  m  the  contract 
itself  or  expressly  at  the  sale, 


]304  VOID   JUDICIAL   AND   EXECUTION    SALES. 

(Desplate  v.  St.  Martin,  17  La.  Ann.  91;  Insurance  Co.  v.  Bagley,  19 
La.  Ann.  89;  Overton  v.  Tozer,  7  Watts,  331;  Stoekwell  v.  Byrne,  22 
Ind.  6:  Dean  v.  Morrison,  10  Ind.  307;  Smith  v.  Douglass,  14  Ind.  442; 
Baker  v.  Roberts,  14  Ind.  552;  Stockmever  v.  Tobin,  139  U.  S.  176  —  11 
Sup.  Ct.  Rep.  504. 

while  other  decisions  adhere  so  strictly  to  the  doctrine  that 
these  laws  are  mandatory  that  their  provisions  are  not  suscep- 
tible of  being  waived  by  express  agreement. 

(Threshing  Machine  Co.  v.  Beck,  95  Iowa.  725  —  64  N.  W.  Rep.  G37; 
Dennis  v.  Moses,  IS  Wash.  537  —  52  Pac.  Rep.  333.) 

In  Sales  by  Administrators  and  Guardians. 

§  335.  Appraisement  is  a  requisite  also  in  many  states  in 
sales  by  administrators,  executors  and  guardians,  and  when 
made  in  contravention  of  this  requirement  have  been  con- 
sidered void  in  Missouri  and  Louisiana,  on  the  hypothesis  that 
courts  of  probate  are  of  limited  jurisdiction,  and  that  in  sales 
made  under  their  authority  it  must  appear  that  the  provisions 
of  the  statute  have  been  complied  with,  there  being  no  liberal 
indulgence  as  are  applied  to  the  proceedings  of  courts  of  gen- 
eral jurisdiction. 

(Strouse  v.  Drennan,  41  Mo.  289;  Succession  of  Curley,  18  La.  Ann. 
728.) 

But  wherever  probate  courts  are  regarded  as  of  general 
jurisdiction  of  matters  placed  within  their  jurisdiction,  on 
principle  such  sales  can  be  voidable  only,  for  when  reported 
back  to  the  court  for  confirmation  the  irregularity  is  cured 
by  the  confirming  order  and  thereafter  the  sale  can  not  be 
questioned  for  want  of  an  appraisement  except  by  invoking 
the  appellate  jurisdiction  of  the  court,  or  perhaps  by  a  direct 
action  upon  equitable  grounds,  but  it  can  not  be  successfully 
attacked  in  a  collateral  manner  after  confirmation.  This 
seems  now  to  be  the  rule  in  Louisiana  also,  though  earlier  it 
was  otherwise. 

(Neligh  v.  Keene,  16  Neb.  407  —  20  N.  W.  Rep.  277;  Apel  v.  Kelsey, 
47  Ark.  413  —  2  S.  W.  Rep.  102;  Bell  v.  Green,  38  Ark.  78;  Barter  v. 
Engles,  35  Ark.  205;  Montgomery  v.  Johnson,  31  Ark.  74;  Mulholland 
v.  Scott,  33  La.  Ann.  1043;  Frazier  v.  Zlics,  29  La.  Ann.  534;  Succession 
of  Hood,  33  La.  Ann.  466.) 


SALES   TO    RAISE    EXCESSIVE    AMOUNT.  305 

SALES   TO   RAISE   EXCESSIVE   AMOUNT. 

Makes  the  Sale  Voidable  Merely. 

§  336.  As  judicial  sales  are  made  by  the  court,  in  con- 
templation of  law,  and  are  not  complete  until  after  confirma- 
tion, and  that  when  the  application  for  confirmation  is 
brought  on  for  hearing  the  court  considers  and  passes  upon 
all  defects  and  irregularities,  the  fact  that  a  greater  sum  is 
raised  at  the  sale  than  is  authorized  by  the  decree  is  cured  by 
the  order  of  confirmation.  The  same  rule  applies  to  sales 
made  by  administrators,  executors  and  guardians  under  the 
order  of  the  court,  and  to  execution  sales  where  confirmation 
is  a  requirement  of  statute. 

(Dawson    v.    Litsey,    10    Bush,    408.) 

Even  in  execution  sales  purely  ministerial,  where  no  con- 
firmation is  required,  the  fact  that  an  excessive  amount,  is 
raised  can  be  considered  in  no  other  light  than  that  of  an 
irregularity  which  manifestly  is  insufficient  to  make  the  sale 
void,  though  it  may  make  it  voidable. 

(Bachelder  v.  Chevas,  5  N.  M.  562  —  25  Pac.  Rep.  783;  Marshall  v. 
Green,  1  S.  W.  Rep.  602 ;  Coffin  v.  Freeman,  84  Me.  535  —  24  Atl.  Rep. 
986.) 

Nor  is  the  sale  void  when  made  under  execution  and  no 
confirmation  is  required,  where  more  property  is  sold  than 
was  required  to  satisfy  the  judgment,  as  this  is  at  best  but  a 
mere  irregularity,  sufficient  to  warrant  the  court  in  vacating 
it  upon  timely  application  therefor,  but  until  vacated  it  is 
valid. 

(Aldrich  v.  Wilcox.  10  R.  T.  405;  Tiernan  v.  Wilson.  6  Johns.  Ch.  411; 
GrofT  v.  Jones,  6  Wend.  522  —  22  Am.  Dee.  545 ;  Osgood  v.  Blaekmore, 
59    111.    261;    Weaver    v.    Guycr,    59    Ind.    195.) 

Makes  the  Sale  Void. 

§  337.  By  some  authorities  execution  sales  are  held  void 
when  made  to  raise  a  greater  sum  than  is  authorized  by  the 
judgment,  being  ministerial,  if  the  officer  exceeds  his  au- 
thority given  him  by  the  execution,  by  raising  an  excessive 
sum,  it  is  a  usurpation  of  power,  and  the  sale  is  a  mere  nullity. 

(Dawson  v.  Litsey,  10  Bush.  40S;  Hastings  v.  Johnson.  1  Nov.  613; 
Gatrnvright  v.  Hazard,  10  B.  Mon.  557;  Blakey  v.  Abert.  1  Dana,  1S5; 
Patterson  v.  Carneal,  3  A.  K.  Marsh.  618  —  13  Am.  Dec.  208.) 

20 


306  VOID   JUDICIAL   AND   EXECUTION   SALES. 

Sometimes  Held  to  Make  Probate  Sale  Void. 

§  338.  While  according  to  the  weight  of  authority  a  pro- 
bate sale  is  not  void  when  made  to  raise  too  great  a  sum,  the 
irregularity  being  cured  by  confirmation,  it  is  nevertheless 
held  by  other  cases  that  a  sale  of  land  in  probate  by  an  ad- 
ministrator for  the  payment  of  debts,  for  an  amount  exceeding 
the  sum  authorized  to  be  raised,  is  an  abuse  of  authority  which 
may  be  taken  advantage  of  by  any  one  whose  interests  are 
affected  thereby,  and  the  sale  thus  made  is  void.  These 
authorities  consider  the  sale  by  an  administrator  or  guardian 
in  a  different  light  from  judicial  sales,  and  more  the  act  of  the 
offcer  in  his  fiduciary  capacity  than  the  act  of  the  court,  and 
hence  the  confirmation  is  held  insufficient  to  cure  such  defect. 
Whatever  the  propriety  of  this  rule  may  be  it  is  contrary  to 
the  vast  weight  of  authority. 

(Wakefield  v.  Campbell.  20  Me.  393  —  37  Am.  Dee.  60;  Adams  v.  Mor- 
rison, 4  N.  H.  166  —  17  Am.  Dec.  406;  Merrill  v.  Harris.  26  N.  H.  142  — 
57  Am.  Dec.  359;  Lockwood  v.  Sturdevant,  6  Conn.  373;  Litchfield  v. 
Cudworth,  15  Pick.  23.) 

SALE  OF  EXCESSIVE  QUANTITY. 

Sometimes  Held  to  Make  the  Sale  Void. 

§  339.  Sales  under  execution  where  no  confirmation  is 
provided  by  statute  are  strictly  ministerial.  Accordingly, 
when  the  officer  exceeds  his  authority  and  sells  materially 
more  land  than  is  required  to  satisfy  the  judgment,  the  sale  is 
considered  void  in  Kentucky,  because  it  can  not  be  split  up 
so  as  to  be  valid  in  part  and  void  as  to  the  residue,  and  may 
be  vacated  at  the  instance  of  any  one  interested,  or  who  has 
been  prejudiced  thereby.  The  act  of  the  officer  in  this  regard 
is  indubitably  void,  being  in  excess  of  power,  unless  the  excess 
in  quantity  i<  so  inconsiderable  as  obviously  to  be  of  no  con- 
sequence to  either  party  to  the  litigation. 

(Walker  v.  McXnight,  15  P..  Mon.  467  —  61  Am.  Dee.  190;  Patterson 
v.  Corneal,  3  A.  K.  Marsh,  618  —  13  Am.  Dec.  208;  Adams  v.  Keiser, 
7  Dana,  208;  McKnight  v.  Applegate,  3  Mon.  338;  Pepper  v.  Com.,  6 
Mon.  30:  Davidson  v.  McMurty,  :.•  J.  J.  Marsh.  64;  Carlisle  v.  Carlisle, 
7  J.  J.  Marsh.  624;  Stover  v.  Boswell,  3  Dana,  235;  Morris  v.  Bruce,  9 
Dana.  211;  Isaacs  v.  Gearhart.  12  P.  Mon.  213;  Shropshire  v.  Pullen,  3 
Bush,   512;   Southard  v.   Pope,  9  B.  Mon.  263.) 


SALES    OF    PROPEKTT!    OB    [NTEREST    NOT    LIABLE.        -307 

Is  an  Irregularity  Making  Sale  Voidable  Merely. 

§  340.  Certainly  in  chancery  and  probate  sales,  and  from 
analogy,  principle  and  expediency,  in  execution  sales  as  well, 
tin-  sale  of  more  land  than  is  required  to  satisfy  the  judgment, 
is  at  best  but  a  mere  irregularity  for  which  the  sale  may  be 
vacated  upon  application  to  that  effect  within  a  proper  time. 
But  when  the  sale  lias  once  been  consummated  by  the  execu- 
tion and  delivery  of  a  proper  conveyance  it  is  manifestly  too 
late  to  attack  it  then  for  this  reason,  unless  by  bill  in  equity  on 
the  averment  of  the  jurisdictional  facts  necessary  to  invoke  the 
aid  of  equity,  such  as  fraud  and  the  like.  The  mere  fact  of 
the  sale  of  an  unnecessarily  large  amount  of  property  alone  is 
not  sufficient.  It  is  true  the  officer  does  not  act  within  the 
spirit  of  his  authority  when  he  sells  more  than  is  adequate  to 
satisfy  the  writ,  but  it  can  hardly  be  said  to  nullify  his  acts. 

A  sale  of  too  much  property  is  in  effect  but  gross  in- 
adequacy, which  alone  is  insufficient,  according  to  the  pre- 
vailing rule,  to  make  the  sale  void;  though  coupled  with  mis- 
take or  misrepresentation  it  is  voidable  and  may  be  vacated 
upon  timely  application,  but  until  this  is  done  it  will  stand. 

(Gibson  v.  Lyon.  115  U.  S.  439  —  6  Sup.  Ct.  Rep.  129;  Barnes  v. 
Zoercher,  127  Ind.  105  —  26  N.  E.  Rep.  709;  Kinney  v.  Keobel,  51  111. 
112;  Nix  v.  Williams,  110  Ind.  234—11  N.  E.  Rep.  36;  Osgood  v.  Black- 
more,  59  111.  261;  Weaver  v.  Guyer,  59  Ind.  195;  Groff  v.  Jones,  6 
Wend.  522  —  22  Am.  Dec.  545:  Aldrich  v.  Wilcox,  10  R.  I.  405;  Tiernan 
v.  Wilson,  6  Johns.  Ch.  411;  Bell  v.  Taylor.  14  Kan.  277.) 

SALES  OF  PROPERTY  OR  INTEREST  NOT  LIABLE. 

Of  Third  Person  Can  not  be  Sold. 

§  341.  It  is  axiomatic  that  the  property  or  interest  at- 
tempted to  be  sold  at  an  execution  or  judicial  sale  must  be 
subject  to  the  judgment,  decree,  order  or  writ  under  which  the 
-ale  is  made.  Its  subjection  is  indispensable  to  a  valid  sale, 
and  it*  not  so  subject,  then  as  a  necessary  corollary  it  follows 
without  demonstration  that  the  sale  is  absolutely  nugatory. 
It  is  without  jurisdiction  for  the  want  of  snb 'edibility.  .Mani- 
festly only  the  property  of  the  judgment  debtor  is  liable  to 
be  subjected  to  the  satisfaction  of  the  judgment,  upon  prin- 
ciples of  natural  justice  and  constitutional  right,  and  if  the 
property  of  one  having  no  connection  with  the  litigation  and 


308  VOID   JUDICIAL   AND   EXECUTION   SALES. 

against  whom  no  judgment  has  been  obtained,  is  seized  under 
an  execution  issued  against  another,  it  is  inoperative  and  with- 
out effect  upon  his  title.  In  this  regard  there  is  no  distinction 
between  sales  of  real  and  porsonal  property.  The  Saxon  in- 
stitution by  which  a  purchaser  in  market  overt  received  a 
good  title  to  the  property  which  he  bought  free  from  any 
question  concerning  its  previous  or  real  ownership,  is  not 
enforced  and  has  no  application  whether  directly  or  indirectly 
to  sales  made  under  the  coercive  process  of  law. 

That  a  purchaser  at  an  execution  sale  acquires  no  interest 
in  chattels  belonging  to  one  not  a  party,  and  that  the  title 
to  such  property  remains  unaffected  by  such  sale,  is  a  self- 
evident  proposition  maintained  by  an  unbroken  current  of 
judicial  authority.  This  rule  is  sustained  by  American  courts 
with  unvarying  unanimity,  and  accordingly,  the  purchaser  is 
always  liable  at  the  suit  of  the  real  owner,  for  a  recovery  of 
the  specific  property  or  its  value.  The  good  faith  of  the 
purchaser  is  a  matter  of  inconsequential  materiality. 

(Heberling  v.  Jagger,  47  Minn.  70  —  49  N.  W.  Eep.  396;  Burwell  v. 
Herron.  16  So.  Eep.  356;  Gross  v.  Washington.  38  S.  W.  Rep.  442; 
Warren  v.  Gutchins,  71  Mich.  407  —  39  N.  W.  Rep.  476;  Jacob  v.  Watson. 
42  N.  Y.  Supp.  6 ;  Bartholomew  v.  Warner,  32  Conn.  98  —  S5  Am.  Dec. 
251;  Simonds  V.  Hall,  37  Me.  354  —  59  Am.  Dec.  53;  Coombs  v.  Gordon, 
59  Me.  Ill;  Shampiny  v.  Smith,  15  Gray.  512;  McAlpine  v.  Tourtelotte, 
24  Fed.  Rep.  69:  Duffum  v.  Dean.  8  dish.  35;  Bryant  v.  Whitcher,  52 
N.  H.   158:  Griffith  v.  Fowler,  18  Vt.  390.) 

Naked  Legal  Title  only  Held  by  Judgment  Debtor. 

§  342.  A  question  of  paramount  importance  in  sales  under 
execution  is  that  the  property  or  interest,  of  the  judgment 
debtor  levied  upon  and  sold,  must  be  such  as  is  subject  to  the 
execution  under  which  it  is  seized,  and  if  not  so  the  entire 
proceedings  are  a  nullity  and  will  not  affect  the  title  in  the 
least  degree.  Therefore,  notwithstanding  the  general  rule 
that  legal  estates  are  subject  to  sale  under  execution  in  suits 
at  law,  yet  when  the  naked  legal  title  only,  unconnected  with 
any  beneficial  interest  in  the  property,  stands  in  the  name  of 
the  judgment  debtor,  it  is  not  subject  t<«  disposition  in  this 
manner,  and  if  attempted  to  be  sold  the  transaction  is  void. 

(Morrison  v.  Ilerrington,  120  Mo.  665  —  25  S.  W.  Rep.  568:  Baker 
v.  Coppenbarger,  15  III.  L03  — 58  Am.  Dec.  600;  Bostwiek  v.  Keizer,  4 
J.  J.  Marsh.  597  —  20  Am.  Dec.  237;   Klein  v.   New  Orleans,  99  U.   S. 


SALES    OF    PROPERTY    OR    INTEREST    XOT    LIABLE. 


309 


149-  Campfield  v.  Johnson,  5  N.  J.  Eq.  245;  Hitchcock  v.  Wharf  Co., 
50  Fed.  Rep.  263;  Smith  v.  Mc(  aim.  24  How.  398;  Crenshaw  v.  Juhen, 
29  S.  C.  283  —  4  Am.  St.  Rep.  719;  Hunt  v.  Towneend,  31  Md.  336; 
Hancock   v.   Titus,    39   Miss.    224.) 

Nor  is  the  rule  restricted  to  formal  declarations  of  tiust, 
but  it  applies  where  trusts  arise  by  operation  of  law  as  well  as 
to  such  as  are  founded  upon  some  formal  declaration  or  con- 
veyance. 

(Lounsbury  v.  Purdy,  11  Barb.  490;  Thomas  v.  Kennedy,  24  Iowa, 
398.) 

But  on  the  other  hand,  if  the  holder  of  the  legal  title  has 
a  beneficial  interest  in  the  property,  as  a  necessary  corollary, 
the  legal  title  may  be  bound  co-extensive  with  the  magnitude 
of  the  beneficial  interest  which  it  covers. 

(Drysdale's  Appeal.   15   Pa.   St.   457. 

Sale  of  Homestead  is  Void. 

§  343.  Upon  the  principle  that  the  defendant's  property 
upon  which  a  levy  is  made  must  be  such  as  is  subject  to  execu- 
tion sale,  it  has  been  decided  that  when  the  homestead  is  by 
law  an  exemption  to  the  debtor  of  an  entire  estate  in  the 
homestead,  there  is  no  reversion  subject  the  levy  and  com- 
pulsory sale,  and  a  sale  under  execution  of  such  a  homestead 
is  unwarranted  in  law  and  an  unqualified  nullity. 

(Bank  v.  Guthrey.  127  Mo.  1S9-29  S.  W.  Rep.  1004;  Whitefield  V. 
Adams.  65  Vt.  632  —  27  Atl.  Rep.  323;  Phillips  v.  Root,  6S  Wis.  128  — 
31  X  W.  Rep.  712;  Mertz  v.  Berry,  101  Mich.  32  —  59  N.  W.  Rep.  445; 
Baumann  v.  Franse,  37  Xeb.  807  —  56  X.  W.  Rep.  305;  Kendall  v. 
Clark  10  Cal.  17  —  70  Am.  Dec.  691;  Parker  v.  Parker,  54  \  t,  341; 
Kendall  v.  Powers.  96  Mo.  142  —  8  S.  W.  Rep.  793;  Defeltz  v.  Pico,  46 
Cal.    289;    Fairbanks   v.    Devereau,    48   Vt.    552.) 

Or  where  the  sheriff  neglected  to  lay  off  the  homestead  be- 
fore the  sale  under  execution  took  place,  as  by  law  provided, 
the  proceedings  are  considered  void  oven  as  against  a  third 
person  who  became  a  purchaser,  as  he  can  not  be  considered 
in  the  light  of  a  bona  fide  purchaser,  under  such  circum- 
stances. 

(McCracken  v.  Adlcr,  98  X.  C.  400-4  S.  E.  Rep.  138;  Bank  v.  Rollins, 
63  X.  H.  66:  Nichols  v.  Spremont,  111  111.  631;  Mebone  v.  Layton,  89 
N.  C.  631;  Durham  v.  Bostwick,  92  X.  C.  353.) 


310  VOID   JUDICIAL   AND   EXECUTION   SALES. 

But  where  the  homestead  is  not  the  entire  estate  in  the 
particular  tract,  but  is  a  life  estate  only  therein,  the  reversion 
has  been  held  in  Hew  Hampshire  to  be  subject  to  sale  under 
execution. 

(Cross  v.  Ware,  62  N.   H.   125.) 

There  is  an  irreconcilable  conflict  of  authority  upon  the 
proposition  as  to  whether  or  not,  in  order  to  preserve  his 
right  in  the  homestead  from  being  considered  waived  or  lost 
by  his  laches,  a  judgment  defendant  must  claim  his  home- 
stead of  the  officer  who  has  levied  or  is  about  to  levy  an  execu- 
tion upon  it.  That  he  must  assert  this  right  is  maintained 
upon  the  principle  that  any  right  of  property  may  be  waived, 
and  this  even  passively,  and  that  the  right  of  property  is  never 
so  unconditional  and  absolute  but  that  it  must  be  asserted 
when  attacked. 

(Caldwell  v.  Trusdale,  13  S.  W.  Rep.  101;  Kirk  v.  Cassody,  12  S.  W. 
Rep.  1039;  Spitley  v.  Frost,  15  Fed  Rep.  299;  Brumbaugh  v.  Zollinger, 
59  Iowa,  381—13  N.  W.  Rep.  338:  Buzzell  v.  Hardy.  58  X.  H.  331; 
Norris  v.  Kidd,  28  Ark.  485;  Choice  v.  Charles,  7  S.  C.  171;  Chambers 
v.  Perry,  47  Ark.   400.) 

Diametrically  the  opposite  doctrine  is  asserted  in  other  ad- 
judications the  conclusions  of  which  are  founded  upon  the 
proposition  that  the  right  of  homestead  is  of  an  absolute 
character  and  can  not  be  evaded  or  defeated  through  the  ca- 
price of  others,  nor  can  it  be  lost  by  a  passive  waiver.  What- 
ever may  be  said  of  this  doctrine,  it  is  certainly  in  harmony 
with  the  spirit  and  intent  of  the  homestead  law  in  general. 

(Pierce  v.  Truax,  15  Colo.  223  —  25  Pac.  Rep.  183;  Vogler  v.  Mont- 
gomery, 54  Mo.  577;  Davis  v.  Pay.  56  Ark.  156  —  19  S.  W.  Rep.  502; 
Willis  v.  Matthews,  46  Tex.  479;  Lambert  v.  Kinney.  74  N.  C.  350; 
Barrett  V:  Wilson,  102  111.  302;  Nichols  v.  Spremont,  111  111.  631  ;  Selig- 
son  v.  Collins,  64  Tex.  314;  Lessley  v.  Phipps,  49  Miss.  790;  Beecher  v. 
Baldy,  7  Mich.  488;  Moriarty  v.  Gait,  112  111.  373.) 

Even  in  states  where  by  statute  judgments  are  general  liens 
upon  the  defendant's  lands  it  is  held  that  a  judgment  is  never- 
theless  not  a  lien  upon  the  homestead  premises,  if  within  the 
statutory  limits,  and  the  same  is  therefore  held  by  the  owner 
fie'  from  incumbrance  by  reason  of  such  judgment,  ami  can 
be  conveyed  free  from  the  owner's  previous  debts.  Mani- 
festly,  if  not  incumbered  by  the  judgment  lien,  it  is  not  sub- 


SALES    OF    PROPERTY    OR    INTEREST    NOT    LIABLE.  311 

ject  to  execution  sale  thereunder,  and  if  sold  the  proceedings 
are  void  and  no  title  will  be  transferred  thereby. 

(Ketchin  v.  Mr.  arley,  26  S.  C.  1  -  H  S.  E.  Rep.  L099;  Giles  v.  Miller. 
36  Neb  346  —  54  X.  W.  Rep.  551;  Newmeier  v.  Vincent,  41  Minn.  4S1  — 
43  X.  W.  Rep.  376:  Davis  v.  Day.  56  Ark.  156  —  19  S.  W.  Rep.  502; 
Avers  v.  Uriel.  720—51  X.  W.   He]'.  14;  Moriarty  v.  Gait.  112   111.  ::73.) 

In  North  Carolina  it  is  held  that  a  judgment  against  the 
owner  of  a  homestead  creates  a  lion  on  the  land  enforceable  at 
the  termination  of  the  right  of  homesl 

(Stern  v.  Lee,  115  X.  C.  436  —  20  S.   E.  Rep.   736.) 

\ml  in  Georgia  it  is  held  that  a  homestead  can  not  be 
created  in  contravention  of  contracts  and  obligations  existing 
at  the  time  of  the  enactment  of  the  statute. 

(Dunagan  v.  Webster,  93  Ga.   540-21  S.  E.    Rep.  65.) 

The  condition  for  exemption  to  be  effective  must  be 
measured  as  of  the  date  when  the  particular  debt  was  incurred 
for  the  satisfaction  of  which  the  homestead  is  sought  to  be 
sold,  and  hence  it  may  be  sold  for  a  debt  existing  at  the  time 
of  its  acquisition,  according  to  some  authorities. 

(Hebert   v.   Mayer,   47    La.   Ann.    503-17    So.    Rep     131;    Titus   v. 
Warner   07  Vt.  242-31  Atl.  Rep.  297;  Robinson  v.  Leach,  o,   \  t.  12b 
31  Atl.  Rep.  32;  Dunn  v.  Stevens,  62  Minn.  380-64  X.  W.  Rep.  024.) 

Where  the  homestead  is  by  law  declared  exempt  from  sale 
under  judgments  for  certain  debts,  as  for  debts  contracted  be- 
fore the  issuance  of  patent  to  the  premises  under  the  laws 
of  congress,  the  homestead  can  not  be  sold  under  execution 
upon  judgments  based  on  such  claims. 

(Bank  v.  Riley,  20  Ore.  289  —  45  Pac.  Rep.  7G6;  Barnard  v.  Boiler, 
105  Cal.  214.) 

The  sale  of  the  homestead  premises  of  the  decedent  by  his 
administrator  under  the  order  of  the  court  is  void,  when  the 
same  does  not  come  under  the  control  of  the  probate  court 
wherein  the  proceedings  of  administration  are  pending,  any 
further  than  to  ascertain  what  is  the  homestead. 

(Keyes  v  Cyrus,  100  Cal.  322-34  Pac.  Rep.  722;  Wehrle  v.  Wehrle, 
39  Ohio  St.  365;  Yarboro  v.  Brewster.  38  Tex.  397;  Hamblin  v.  \\  ar- 
necke,  31  Tex.  93;  Howe  v.  McGivern,  25  Wis.   525.) 

Where  the  law  exempts  a  homestead  of  a  certain  quantity 
or  area,  and  the  property  claimed  is  in  excess  of  this  quantity, 


312  VOID   .JUDICIAL    AND   EXECUTION   SALES. 

if  the  part  not  exempt  is  not  set  apart  a*  by  statute  required, 
but  the  whole  tract  be   sold  the  sale  is  void  as  to  the  whole. 

(Owens  v.  Hart.  52  Iowa.  620—17  X.  W.  Hop.  898;  Klpp  v.  Billiard, 
30  Minn.  S4  —  14  X.  W.  Rep.  364:  Mohan  v.  Smith,  30  Minn.  259—15 
X.  W.  Rep.  US;  Mebane  v.  Layton,  S9  X.  C.  396.) 

Sale  of  Land  not  Embraced  in  the  Order  of  Sale. 

§  344.  Notwithstanding  a  valid  decree  or  order  of  sale  has 
been  made  authorizing-  the  sale  of  certain  lands  therein  desig- 
nated and  belonging  to  the  decedent,  if  the  administrator  ad- 
vertises and  sells  land  not  embraced  in  the  order  of  sale,  the 
proceedings  are  obviously  without  authority  and  absolutely 
void  as  to  the  land  not  included  in  the  order  or  license.  That 
the  order  was  modified  subsequent  to  the  sale  is  of  no  avail. 
The  defect  is  a  fatal  jurisdictional  infirmity  incapable  of  being- 
cured  by  confirmation  by  the  court. 

(Melton  v.  Fitch.  125  Mo.  2S1  —  28  S.  W.  Rep.  612;  Greene  v.  Holt, 
76  Mo.  677:  Ludlow  v.  Park.  4  Ohio,  5;  Blackwell  v.  Townsend,  91  Ky. 
609—16   S.  W.  Rep.  587.) 

Sale  of  Exempt  Personal  Property  is  Void. 

§  345.  It  is  a  settled  question  in  our  jurisprudence  that  an 
execution  sale  of  property  exempt  under  the  homestead  laws, 
in  defiance  of  the  rights  and  against  the  objections  of  the 
claimant  of  the  same  is  unauthorized  and  void.  It  is  also  a 
rule  of  law  that  the  sale  of  personal  property  exempt  by 
statute  is  insufficient  to  divest  the  owner  of  the  title  thereto, 
if  the  claim  is  properly  urged  as  required  by  law. 

(Williams  v.  Miller,  16  Conn.  144:  Twinin  v.  Swart.  4  Lans.  263; 
Paxton  V.  Freeman,  6  J.  J.  Marsh.  234  —  22  Am.  Dec.  74;  Johnson  v. 
Babcock,   8   Allen,    583.) 

Property  of  Municipal  Corporation. 

§  346.  Upon  principles  of  public  policy  the  property  of  a 
municipal  corporation  utilized  in  the  administration  of  its 
affairs  is  no1  subject  to  levy  and  sale  under  execution,  and  a 
Bale  of  such  property  in  violation  of  this  rule  is  void,  and  the 
purchaser  will  acquire  no  title  thereto. 

(Emery  County  v.  Burresen,  11  Utah,  328  —  47  Pae.  Rep.  91;  Morri- 
son v.  Hinkson,  87  111.  588  —  29  Am.  Rep.  77:  City  of  Pekin  v.  Mc- 
Mahon,  154  II!.  141  —  39  N.  E.   Rep.    1st.) 


SALES  OF  PARTIAL  ESTATE  ONLY.  OR  OF  DIFFERENT  INTEREST.    313 

Community  Interest  for  Separate  Debt  of  One  Spouse. 

§  347.  In  "Washington  where  the  community  system  of 
property  rights  between  husband  and  wife  exists,  the  in- 
terest of  one  of  the  parties  of  the  community  in  the  common 
property  can  not  he  sold  for  tin-  separate  debts  <>f  such  party 
during-  the  existence  of  the  community.  Such  individual  in- 
terest can  not  be  reached  to  satisfy  such  claims  until  after  the 
dissolution  of  the  community  by  death  or  otherwise,  and  then 
only  subject  to  the  community  debts  which  are  a  prior  charge 
on  such  property. 

(Stockand  v.  Bartlett,  4  Wash.  730  —  31  Pac.  Rep.  24.) 


SALES  OF  PARTIAL  ESTATE  ONLY,  OR  OF  DIF- 
.  FERENT  INTEREST. 

Where  Execution  Defendant  is  Owner  of  Entire  Fee. 

§  348.  It  is  a  general  rule  of  law  that  whenever  land  is  sus- 
ceptible of  subdivision,  and  one  or  more  of  the  subdivisions 
are  of  sufficient  value  to  satisfy  the  mandates  of  the  writ,  the 
officer  making  the  levy  is  charged  with  the  duty  of  selling  a 
portion  only  of  the  entire  estate,  and  not  the  whole  thereof, 
so  as  to  avoid  unnecessary  sacrifice.  But  the  philosophy  of 
this  rule  is  wanting  in  a  ease  where  the  judgment  debtor 
is  the  owner  of  the  entire  estate  in  fee  simple  in  a  particular 
tract  of  land,  and  the  officer  in  the  possession  of  a  general 
execution  seeks  to  levy  upon  and  sell  a  fractional  undivided 
interest  in  the  entire  estate.  The  execution  debtor  being  the 
absolute  owner  of  the  whole  interest  or  estate  in  such  tract  the 
law  will  not  permit  the  plaintiff  to  make  the  owner  and  the 
execution  purchaser  tenants  in  common  by  a  sale  in  this  man- 
ner. Hence  a  sale  of  a  fractional  interest  when  the  whole 
estate  belongs  to  the  debtor  is  void. 

(Wilbanks  v.  Untrine,  93  Ga.  801  —  25  S.  E.  Rep.  S41  :  Eberstine  v. 
Oswalt.  47  Mich.  2:,4  — 10  X.  W.  Rep.  360;  Crane  v.  Guthrie,  47  Iowa, 
542;  Braley  v.  Simonds,  01  X.  H.  300.) 

Sales  in  Probate  Proceedings. 

§  349.  The  statutory  authority  to  sell  property  in  estates  in 
probate  is  a  special  power,  and  upon  this  principle  it  ha*  been 
decided  that  nothing  but  the  entire  interest  of  which  the  de- 


314  YOID   JUDICIAL   AXD   EXECUTION    SALES. 

cedent  died  seized  in  the  particular  premises  involved,  can 
be  sold.  A  sale  of  an  undivided  interest  in  such  land  when 
the  estate  is  the  owner  of  the  complete  title  is  an  absolute 
nullity. 

(Daly's  Appeal.  47  Mich.  443  —  11  X.  W.  Eep.  262;  Eberstein  v.  Os- 
walt. 47  Mich.  254—10  X.  W.  Rep.  360.) 

The  probate  court  licensed  the  administrator  to  sell  and 
convey  the  equity  of  redemption  in  the  premises  whereof  the 
decedt  nt  was  seized  with  the  unincumbered  fee,  and  the  sale 
was  held  void,  because  there  was  no  such  interest  to  dispose 
of  as  was  ordered  to  be  sold,  and  further  because  the  court 
had  not  authorized  the  fiduciary  to  sell  and  convey  an  estate 
in  fee. 

(Braley  v.  Simonds,  61  N.  H.  369;  Crane  v.  Guthrie.  47  Iowa.  54^'.) 

Sales  of  Property  Subject  to  Mortgage. 

§  350.  Where  the  common  law  theory  of  a  mortgage  ob- 
tains, if  a  tract  of  land  is  levied  on  and  sold  subject  to  a  mort- 
gage, when  in  fact  the  mortgage  had  theretofore  been  fully 
liquidated,  the  proceedings  are  wholly  ineffectual  and  pass  no 
title  or  estate  in  the  property.  The  property  having  been 
levied  on  and  sold  subject  to  the  mortgage,  in  contemplation 
of  law  there  was  a  sale  of  no  other  estate  than  an  equity  of  re- 
demption, which,  as  a  logical  sequence  from  the  fact  of  pay- 
ment, is  not  an  existing  interest,  and  hence  nothing  was  sold. 

(Dougherty  v.  Linthicum,  8  Dana.  198;  Barrett  v.  Stearns.  73  Me.  21; 
Brown  v.   Snell.  46  Me.  490.) 

The  rationale  of  the  rule  preventing  both  court  and  officer 
from  dissecting  an  estate  complete  in  itself  and  vested  in  the 
judgment  debtor,  or  the  estate  of  a  decedent,  into  different 
interests,  vested  by  virtue  of  the  sale  in  different  individual-, 
and  all  constituting  but  an  estate  in  fee,  finds  ample  justifica- 
tion in  the  prevention  of  a  deterioration  in  the  value  of  the 
property  by  reason  of  its  division.  This  is  sufficient  to  justify 
the  enunciation  of  the  rule,  and  it  seems  that  the  considera- 
tion for  its  announcement  is  substantially  confined  to  this 
ground. 


SALES   OF   LANDS   IX   ADVERSE  POSSESSION.  315 


SALES  OF  LANDS  IN  ADVERSE  POSSESSION. 

At  Common  Law  was  Void. 

§  351.  Under  the  common  law  a  conveyance  of  land 
which  was  not  at  the  time  in  the  possession  of  the  grantor  was 
unconditionally  void.  In  order  to  transfer  the  estate  de- 
livery of  possession  was  absolutely  essential  under  the  doctrine 
of  the  common  law.  By  the  English  statute,  32  Henry,  8, 
c.  1>,  a  conveyance  by  a  disseized  owner  was  a  criminal  offense 
on  the  part  of  both  vendor  and  vendee,  working  a  forfeiture 
of  the  property  sought  to  he.  conveyed. 

(Knowles  v.  Blodgett,  15  R.  I.  403  —  S  Atl.  Rep.  691;  Burdick  v.  Bur- 
dick.  14  R.  I.  574;  Inglis  v.  Trustees,  3  Pet.  99;  Livingston  v.  l'roseus, 
2  Hill.  520 ;  Williams  v.  Jackson,  5  Johns.  489;  Jackson  v.  Demont,  9 
Johns.  55;   Martin  v.  Pace.  6  Blackf.  99.) 

A  similar  rule  obtains  in  New  York  and  Indiana  to  volun- 
tary conveyances  of  lands  similarly  held,  the  conveyance  be- 
ing considered  void  as  to  the  person  holding  the  adverse  pos- 
session, under  express  statute  in  the  former  state  and  under 
the  doctrines  of  the  common  law  in  the  latter. 

(Pearce  v.  Moore,  114  X.  Y.  256  —  21  X.  E.  Pep.  419;  Patterson  v. 
Nixon,  79  Ind.  251;  Steeple  v.  Downing,  00  Ind.  178;  Kite  v.  Doe,  1 
Blackf.  127;  Insurance  Co.  v.  Grim,  32  Ind.  249;  Martin  v.  Pace,  6 
Blackf.  99;  Galbreath  v.  Doc,  8  Blackf.  366.) 

Void  under  Process  of  Law. 

§  352.  Founded  upon  this  policy  of  the  common  law,  held 
to  have  heen  injected  into  our  own  jurisprudence  by  adoption, 
it,  has  been  held  in  Rhode  Island,  New  York  and  Kentucky 
that  a  sale  of  land  under  the  coercive  process  of  law,  when 
the  property  at  the  time  was  held  in  adverse  possession  of  a 
third  person,  is  void  and  passes  no  title  to  or  interest  in  the 
premises  thus  ostensibly  sold  to  the  purchaser. 

(Campbell  v.  Iron  Works.  12  R.  I.  452;  Shepherd  v.  Mclntire,  4  .1.  .1. 
Marsh.  110;  Rung  v.  Grim,  0  B.  Mon.  368;  Jackson  v.  Hopkins,  13 
Johns.   488.) 

Does  not  Affect  Execution  or  Judicial  Sales. 

§  353.  In  some  of  the  states  the  ancient  doctrine  of  the 
common  law  has  been  abrogated  by  express  statute,  and  in 
others  the  rule  has  been  altered  by  judicial  construction.     The 


31(5  VOID   JUDICIAL    AXD    EXECUTION'    SALES. 

social  condition  of  mankind  lias  undergone  remarkable  trans- 
formations since  the  formation  of  this  ancient  policy  of  the 
law  prohibiting  the  conveyance  of  land  in  adverse  possession 
of  another,  and  the  conditions  not  now  existing  which 
prompted  the  establishment  of  the  rule,  there  seems  to  be  no 
valid  reason  to  longer  adhere  to  this  tradition  of  antiouity. 
Accordingly,  while  there  is  a  conflict  of  authority  upon  this 
proposition,  the  overwhelming  weight  of  judicial  opinion  an- 
nounces the  rule  that  this  doctrine  has  no  application  to  exe- 
cution and  judicial  sales,  these  being  beyond  the  scope  of  the 
ancient  inhibition  against  voluntary  conveyances,  and  that 
these  sales  will  be  substantial  irrespective  of  the  question  as 
to  whether  or  not  the  judgment  debtor  is  or  is  not  seized  of 
the  premises  involved. 

(High  v.  Xelms.  14  Ala.  350  —  4S  Am.  Dec.  103;  Ronan  v.  Meyer,  84 
Ind.  390:  Violet  v.  Violet,  2  Dana.  323;  Frizzle  v.  Veach,  1  Dana.  211; 
McGill  v.  Doe.  9  Ind.  306;  Stevens  v.  Houser,  39  N.  Y.  302;  Smith  v. 
Scholtz,  68  X.  Y.  41;  Truax  v.  Thorn,  2  Barb.  156;  Hoyt  v.  Thompson, 
5  N.  Y.  320.) 

INDEFINITE   OR   UNDESIGNATED   TRACT   SOLD. 

If  Inherently  Defective  in  Description  Sale  Void. 

§  354.  It  is  elementary  that  when  the  description  of  the 
premises  attempted  to  be  sold  at  an  execution  or  judicial  sale 
is  so  inherently  defective  that  it  is  impossible  to  ascertain 
therefrom  what  property  is  involved  or  intended,  the  proceed- 
ings of  sale  can  not  be  otherwise  regarded  than  as  nugatory 
for  indefinite] less.  The  officer's  intention  can  not  be  shown 
by  extrinsic  evidence  where  the  description  is  inherently  in- 
sufficient, or  in  ease  of  patent  ambiguity. 

(Tatum  v.  Croom,  GO  Ark.  487  —  30  S.  VV.  Rep.  885  ;  Smith  v.  Crosby, 
86  Tex.  15  —  23  S.  W.  Rep.  10;  Roberts  v.  Deeds,  57  Iowa,  320  —  10 
\.  W.  Rep.  740;  Pfeifler  v.  Lindsay.  66  Tex.  123  —  1  S.  \Y.  Rep.  264; 
Smith  v.  Blaekiston,  s\!  Iowa,  240  —  47  X.  W.  Rep.  1075:  Shoemaker  v. 
McGonigal,  86  [nd.  422;  Griffith  v.  Filey,  76  Iowa.  292  —  41  X.  W.  Rep. 
21;  Mason  v.  While.  11  Barb.  L87;  Norris  v.  Bunt,  51  Tex.  609;  Deloaeh 
v.  Bank,  '.'7  Ala.  437;  Waters  v.  Duval.  6  G.  &  J.  76:  Brigance  v.  Erwin, 
1  Swan.   375.) 

Hence,  where  the  description  is  so  imperfect  as  to  fail  en- 
tirely to  describe  a  tract  of  land,  or  is  applicable  to  several 


INDEFINITE    OB    UNDESIGNATED    TRACT    SOLD.  317 

tract,  and  therefore  indefinite,  if  the  ambiguity  in  either  case 
nms  through  tl  e  whole  proceedings  it  is  unconditionally  void 
for  uncertainty  or  ambiguity. 

(Poindexter  v.  Doolittle,  54  Eowa,  52  —  6  N.  W.  Rep.  136.  ) 
Sales  of  undesignated  or  unlocated  tracts  made  between 
private  individuals,  as  for  instance  of  a  specific  quantity  to  be 
taken  from  a  choice  of  designated  localities  where  such  Lo- 
calities are  themselves  definitely  established,  would  perhaps 
be  enforced  upon  the  exercise  of  the  right  of  selection  given 

by  the  terms  of  the  contract  of  sale,  and  undoubtedly  eqiiity 
would  decree  a  convevance  to  the  enumerated  quantity,  when 
the  grantee  has  exercised  his  right  of  selection.  However, 
if  the  contract  of  sale  be  embodied  in  the  formality  of  a  deed 
of  present,  grant  it  would  evidently  he  inoperative  as  a  con- 
veyance of  a  legal  title  to  any  particular  tract,  and  the  in- 
strument would  he  ineffectual  for  any  purpose.  Before 
"definitely  located  by  the  exercise  of  the  right  of  selection,  or 
before  subsequent  voluntary  conveyance,  or  subsequent  con- 
vevance by  decree  in  equity,  the  grantee  and  grantor  are 
treated  as  tenants  in  common.  But  even  a  contract  to  convey 
a  certain  number  of  acres  in  a  certain  county  or  state,  with 
no  other  or  further  description  would  he  void  for  vagueness 
and  uncertainty,  even  between  private  parties. 

(Dull  v.  Blum,  68  Tex.  299-4  S.  W.  Rep.  489;  Hamilton  v.  Harvey, 
101  ni    4(^-13  N.  E.  Rep.  210:  Nippolt  v.  Kammon,  39  Mran.  61i 
4~0  N.  W.  Rep.  266 ;  Carlyon  v.  Eade,  48  Iowa,  707:  Winter  v.  Tramor 
151  111.   191-37  N.  E.  Rep.   8G9 ;   Clipson  v.   ViUars,   151    HI.   165-37 
N.  E.  Rep.  695.) 

But  the  law  is  not  so  indulgent  with  the  purchaser  under 
a  compulsory  sale  as  it  is  to  a  purchaser  at  a  private  sale  as  it 
does  not  concede  him  to  he  a  tenant  in  common  with  the 
grantor  as  it  would  in  a  private  sale,  hut  on  the  contrary  the 
sale  will  he  considered  void  for  uncertainty,  and  no  title  or 
right  will  inure  to  the  purchaser  thereby.  Execution  sales 
are  ministerial  acts  by  an  officer  who-  authority  is  measured 
and  limited  by  the  law  which  is  the  source  of  his  omciaJ 
power,  and  the  functions  of  the  court  have  terminated  with 
the   rendition  of   the   judgment  upon   which   the   execution 

issued 

(Harris  v.  Shafer,  SG  Tex.  314-28  S.  W.  RePJ>765  Smith  -Crosby, 
86  Tex.   15  —  23   S.   W.   Rep.   10;   Pemberton  v.  McRea,    -5   V   C.   497, 


318  VOID   JUDICIAL   AND   EXECUTION   SALES. 

Wooters  v.  Arledge,  54  Tex.  395;  Owen  v.  Barksdale,  8  Ired.  81;  Stout 
v.  Cook  County,  37  111.  2S3 ;  Deloach  v.  Bank,  27  Ala.  437;  Lecoutour 
V.  Peters,  57  Mo.  A  pp.  449;  Wofford  v.  MeKinna,  23  Tex.  36;  Evans  v. 
Ashley,   8  Mo.   177.  ^ 


EFFECT  OF  INADEQUACY  OF  PRICE. 

Mere  Inadequacy  alone  not  Sufficient  to  Avoid  a  Sale. 

§  355.  Considerable  perplexing  contrariety  will  be  in- 
countered  among  the  adjudications  as  to  the  effect  of  mere 
inadequacy  of  price  unconnected  with  either  irregularities, 
mistake,  fraud  or  the  like.  In  this  regard  there  is  a  vast  dif- 
ference between  execution  sales  whore  the  purchaser's  rights 
are  generally  absolute  upon  the  payment  of  his  bid,  and 
chancery  and  probate  sales,  which  are  always  under  the  con- 
trol of  the  court.  The  great  preponderance  of  authority  pro- 
mulgates the  rule  that,  while  it  may  be  a  badge  of  fraud,  mere 
inadequacy  of  price  alone  is  not  sufficient  to  set  aside  a  com- 
pulsory sale  under  the  coercive  process  of  law. 

(Hollister  v.  Vanderlin,  165  Pa,  St.  248  —  30  Atl.  Rep.  1002;  Bank  v. 
Fair  Association,  2  S.  Dak.  145  —  48  N.  W.  Rep.  852;  Fidler  v.  John, 
178  Pa.  St.  112  —  35  Atl.  Rep.  970;  Nix  v.  Droughon,  56  Ark.  240  —  19 
S.  W.  Rep.  669;  Felton  v.  Felton,  175  Pa.  St.  44  —  34  Atl.  Rep.  312; 
Gunn  v.  Slaughter,  83  Ga.  124  —  9  S.  E.  Rep.  772:  Fullerton  v.  Seiper, 
34  Atl.  Rep.  680;  House  v.  Robertson.  34  S.  W.  Rep.  640;  Robb  v.  Han- 
nah,  14  S.  W.  Rep.  360;  Railway  Co.  v.  Creed,  70  Cal.  497  —  11  Pac. 
Rep.  772;  Cake  v.  Cake,  156  Pa.  St.  47  —  26  Atl.  Rep.  7S1.) 

The  same  rule  is  applied  to  judicial  sales  as  obtains  to  execu- 
tion sales,  for  the  courts  zealously  guard  against  all  attempts 
to  depreciate  the  value  of  the  property  sold,  or  to  prevent  full 
and  fair  competition  thereaT.  Yet  notwithstanding  all  this  it 
is  the  policy  of  the  law  to  sustain  and  give  stability  to  judicial 
sales,  and  in  accordance  therewith  it  has  been  many  times 
held  that  mere  inadequacy  of  price  without  more  is  insuffi- 
cient to  avoid  a  judicial  sale. 

(Carver  v.  Spence,  07  \'t.  563  —  .'!2  Atl.  Rep.  493;  Morrisse  v.  Inglis, 
46  N.  J.  Eq.  306  —  19  Atl.  Rep.  16:  Fowler  v.  Krutz,  54  Kan.  622—38 
Pac.  Rep.  808;  Bliss  v.  Insurance  Co..  51  N.  J.  Eq.  630  —  25  Atl.  Rep. 
381;  Lepper  v.  Mooyer.  82  Md.  649  —  33  Atl.  Rep.  263;  Leary'.s  <  as... 
50  X.  J.  Eq.  383  —  25  All.  Rep.  197;  Iron  Co.  v.  Railway  Co.,  49  N.  J. 
Eq.  356  —  23  Atl.  Rep.  1077:  Thompson  v.  Ritchie,  80  Md.  247  —  30  Atl. 
Hep.  70S;  Alms  v.  Gates,  :;:.'  S.  \Y.  Rep.  1088;  Beam  v.  Johnson,  16  S.  W. 
Rep.   140.) 


EFFECT  OF    CNADEQTJACT   OF   PRICE.  319 

Gross  Inadequacy  Sometimes  Held  Sufficient  to  Avoid  Sale. 

§  356.  As  a  general  rule  both  in  execution  and  judicial 
sales,  courts  will  refuse  to  se1  them  aside  merely  upon  the 
ground  of  inadequacy  in  the  amount  of  the  bid,  yet  the  rule 
refusing  relief  upon  this  around  is  somewhat  modified  in 
some  states,  where  relief  is  furnished  when  the  price  is  grossly 
inordinate,  violating  the  principles  of  justice  and  outraging 
the  conscience.  rriie  inadequacy  being  id'  sufficient  magnitude 
the  presumption  of  fraud  is  raised  and  the  sale  considered 
voidable  without  more. 

(Carrigan  v.  Sclinii.lt.  126  Mo.  304  —  28  S.  \Y.  Rep.  874;  Branch  v. 
Foust,  130  Ind.  538  —  30  N.  E.  Rep.  631  ;  Mining  («..  v.  Mason,  145  U.  8 
349—12  Sup.  C't.  Rep.  887;  Wrighl  v.  Dick,  116  Ind.  53S  — 19  N.  E. 
Rep.  306:  Gordon  v.  O'Neil,  96  Mo.  350  —  9  S.  W.  Rep.  9:30;  Holden  v. 
Vaughn,  64  Mo.  588;  Chamblee  v.  Tarbox,  27  Tex.  139  —  84  Am.  Dec. 
614;  Graffam  v.  Burgess,  117  I  .  S.  180  —  6  Sup.  Ct.  Rep.  686;  Connely 
v.  Rue.  148  111.  207  —  35  N.  E.  Rep.  824;  O'Bryan  v.  Davis.  102  Ala.  429 
—  15  So.  Rep.  860;  Barling  v.  Peters,  134  111.  606  —  25  N.  E.  Rep.  765; 
Publishing  Co.  v.  Bennett.  34  Fla.  302  —  16  So.  Rep.  185;  Loyd  v.  Loyd. 
61  Iowa,  243  —  16  N.  W.  Rep.  117.) 

Inadequacy  Coupled  with  Irregularities. 

§  357.  Insidiously  lurks  the  venom  of  inadequacy  regarded 
by  the  courts  with  vigilant  suspicion,  and  when  environed 
with  slight  additional  circumstances,  such  as  mere  irregulari- 
ties, fraud,  mistaken  or  other  circumstances  calculated  to  pre- 
vent a  realization  of  a  reasonable  value,  it  is  sufficient  to 
authorize  the  court  to  vacate  the  sale,  for  in  all  such  cases  the 
presumption  will  be  conclusive  that  the  price  realized  is  in- 
ordinate and  the  sale  voidable  in  consequence  thereof. 

(Lurton  v.  Rodgers,  139  111.  551  —  29  N.  E.  Rep.  866;  Ivvin  v.  Fergu- 
son. 83  Tex.  491  —  18  S.  W.  Rep.  820;  Aldrich  v.  Lewis.  28  Neb.  502  — 
44  X.  W.  Rep.  735;  Bullen  v.  Dawson,  139  111.  633—29  N.  E.  Rep.  1038; 
Phillips  v.  Wilson,  164  Pa.  St.  350—  30  Atl.  Rep.  264;  Saxton  v.  Seber- 
ling,  48  Ohio  St.  554  —  29  N.  E.  Rep.  179;  Garvin  v.  Hall,  83  Tex.  295  — 
18  S.  W.  Rep.  731;  Cascaden  v.  Cascaden,  140  Pa.  St.  140  —  21  Atl. 
Rep.  259:  Garrittee  v.  Paplain,  73  Md.  322  —  20  Atl.  Rep.  1070;  Kin- 
caid  v.  Tutt,  88  Ky.  392—11  S.  W.  Rep.  297;  Hardware  Co.  v.  Build- 
ing Co.,  132  Mo.  442  —  34  S.  W.  Rep.  57;  Flint  v.  Phipps,  20  Ore.  340  — 
25  Pae.  Rep.  725;  Holdsworth  v.  Shannon,  113  Mo.  508  —  21  S.  \V.  Rep. 
85;  Lebner  v.  Loomis,  S3  Iowa,  416  —  49  N.  W.  Rep.  1018;  Hobson  v. 
McCambridge,  130  111.  367  —  22  \.  E.  Rep.  823;  Means  v.  Rosevear,  42 
Kan.  377  —  22  Pae.  Rep.  319;  Gunter  v.  Cobb,  82  Tex.  59S— 17  S.  W. 
Rep.  848.) 


320  VOID   JUDICIAL   AND    EXECUTION*    SALES. 

And  as  a  general  rule  if  the  inadequacy  of  price  in  a  judi- 
cial sale  is  inordinately  great,  courts  will  seize  upon  circum- 
stances of  fraud  or  unfairness  of  the  slightest  magnitude,  and 
hold  the  same  sufficient  to  set  it  aside. 

(Trustees  v.  Rausch,  122  Ind.  1G7  — 23  X.  E.  Eep.  717;  Jones  v.  Pratt, 
77  Tex.  210  —  13  S.  W.  Rep.  887;  Schroeder  v.  Young.  161  U.  S.  334  — 
16  Sup.  Ct.  Eep.  512;  Land  Co.  v.  Walker,  7S  Iowa,  476  —  43  N.  W. 
Rep.  294.) 

SALES  IX  SOLIDO. 

Are  Usually  Considered  Voidable  Only. 

§  358.  Manifestly,  the  officer  of  the  law  charged  with  the 
duty  of  making  the  sale  of  land  under  the  process  of  law  should 
offer  the  same  in  such  parcels  as  will  he  most  desirable  to  the 
bidders  and  induce  them  to  raise  their  bids  as  high  as  possible 
thus  realizing  the  highest  possible  amount  for  the  debtor  or 
heir  whose  property  is  thus  disposed  of  under  the  forms  of 
law.  But  according  to  the  weight  of  authority  a  sale  of  land 
in  a  lump  which  should  have  been  sold  in  separate  parcels  is 
not  for  this  reason  alone  void,  but  is  at  best  only  voidable,  the 
defect  being  an  irregularity  merely  for  which  the  proceed- 
ings are  not  exposed  to  successful  collateral  assault. 

(Hoffman  v.  Busehmann,  95  Mich.  538  —  55  N.  W.  Rep.  458;  Lewis 
V.  Whitten,  112  Mo.  318  —  20  S.  W.  Rep.  617:  Vanmeter  v.  Assignee, 
88  Ky.  448  —  11  S.  W.  Rep.  80;  Delaplaine  v.  Lawrence.  3  Comst.  301; 
Craig  v.  Stevens,  15  Xeb.  362—18  X".  W.  Rep.  510:  Gleason  v.  Hill.  05 
Cal.  17  —  2  Pac.  Rep.  413;  Bunker  v.  Rand,  19  Wis.  253  —  87  Am.  Dec. 
684;  Williams  v.  Allison,  33  Iowa,  378;  Rector  v.  Hartt,  8  Mo.  448  — 
41  Am.  Dec.  650;  Cunning-ham  v.  Cassidy,  17  XT.  Y.  276;  Griswold  v. 
Stouphton,  2  Ore.  61  —84  Am.  Dec.  409;  Bouldin  v.  Ewart.  63  Mo.  330; 
Foley  v.  Kane,  53  Iowa,  64  —  14  X.  W.  Rep.  821:  Bell  v.  Taylor.  14  Kan. 
277;  Smith  v.  Schultz,  68  X.  Y.  41;  Lumberman  v.  Bank,  24  Minn.  281; 
Vigoureux  v.  Murphy,   54  Cal.  346.) 

So  it  is  held  that  to  avoid  a  sale  en  masse  some  wrong  or 
fraud  must  be  established,  for  it  must  either  have  resulted  in 
injury  to  the  debtor  by  reason  of  diminished  aggregate  price, 
or  the  sale  must  be  environed  by  some  fraudulent  circum- 
stance. Or  that  it  is  voidable  because  it  interferes  with  the 
defendant's  right  of  redemption. 

((  Ink  v.  Kraker,  41  Minn.  444  —  53  X.  W.  Rep.  706;  Ross  v.  Meade, 
5  Gilm.  171:  Power  v.  Larabee,  3  N.  Dak.  502  —  57  X.  W.  Rep.  789; 
McMullen  v.   Gable,   47  111.   67;    Hicks   v.   Perry,   7   Mo.   346;    Smith  v. 


COMBINATIONS    AND    DEVICES    TO    PREVENT    COMPETITION.     321 

Huntoon.  134  111.  24  —  24  N.  E.  Eep.  971;  Hudepohl  v.  Water  Co.,  94 
Ca]_  58S_29  Pac.  Rep.  1025;  Insurance  Co.  v.  Brown,  81  Iowa,  42  — 
46  N.  W.  Rep.  749;  Ballard  v.  Scruggs,  90  Tenn.  585  —  18  S.  W.  Rep. 
259. 

Also  Considered  to  Make  the  Sale  Void. 

§  059.  It  has  been  held  in  Michigan,  Tennessee  and 
Indiana  that  a  sale  of  land  en  masse  of  parcels  not  contiguous 
is  unqualifiedly  void.  That  it  is  a  nullity  even  if  the  sheriff 
idid  first  offer  to  sell  in  parcels.  That  an  execution  sale  of 
lands  is  purely  statutory  and  the  provisions  for  a  sale  in  par- 
cels have  been  held  not  to  be  a  formal  but  a  material  matter, 
and  its  non-compliance  works  a  fraud  on  the  execution  debtor 
which  vitiates  ihe  sale  altogether,  as  the  debtor  has  an  abso- 
lute right  to  redeem  any  one  parcel  separately  to  the  exclusion 
of  the  rest,  and  that  by  a  sale  in  solido  he  is  deprived  of 
this  privilege. 

(Baldwin  v.  Cullen,  51  Mich.  33  —  16  N.  W.  Rep.  191;  Udel  v.  Kahn. 
31  Mich.  195:  Lee  v.  Mason,  10  Mich.  403;  Durm  v.  Fish,  46  Mich.  312 
—  9  X.  W.  Rep.  429 ;  Mays  v.  Wherry.  2  Baxt.  133 ;  Cooke  v.  Walters, 
2  Lea,  116;  Piel  v.  Brayer,  30  Ind.  332  —  95  Am.  Dec.  699;  Voss  v. 
Johnson.  41  Ind.  19;  Doe  v.  Smith,  4  Blackf.  22S;  Reed  v.  Diven,  7  Ind. 
189;  Banks  v.  Bales,  16  Ind.  423.) 

Though  the  present  rule  in  these  states  seems  to  be  some- 
what modified,  and  such  sales  are  not  entirely  void. 

(Hoffman  v.  Buschmann,  95  Mich.  538  —  55  N.  W.  Rep.  458;  Ballard 
v.  Scruggs,  90  Tenn.  585  —  18  S.  W.  Rep.  259;  Carpenter  v.  Russell,  129 
Ind.  571  —  29  N.  E.  Rep.  36;  Nelson  v.  Bronnenburg,  SI  Ind.  193;  Jones 
v.  Association,  77  Ind.   340.) 

COMBINATIONS  AND  DEVICES  TO  PREVENT  COM- 
PETITION. 

Stifling  Bidding  is  Fraudulent  and  Makes  Sale  Invalid. 

§  360.  As  it  is  the  policy  of  the  law  to  uphold  judicial 
sales  if  possible,  so  it  is  the  universal  practice  of  the  courts 
to  require  the  utmost  degree  of  fairness  on  the  part  of  its 
functionaries  in  the  conduct  of  sales  under  its  orders  and 
writs,  as  well  as  on  the  part  of  these  who  seek  to  become  pur- 
chasers thereat.  Therefore,  any  agreement,  combination,  ar- 
rangement or  cabal,  entered  into  by  intending  bidders,  whose 
fraudulent  machinations  and  manipulations  have  a  tendency 
21 


322  VOID   JUDICIAL    AXD    EXECUTION    SALES. 

to  and  are  calculated  to  stifle  competition  at  execution  and 
judicial  sales,  is  contrary  to  public  policy,  a  fraudulent  im- 
position upon  the  court,  and  an  infringement  of  private  rights, 
fatal  to  the  validity  of  the  sale,  which  will  be  vacated  upon  a 
proper  proceeding  inaugurated  for  that  purpose,  either  by 
motion  or  bill  in  equity. 

(Ingalls  v.  Rowell,  149  111.  163  —  36  N.  E.  Rep.  1016:  Ateheson  v. 
Mallon.  43  X.  Y.  147  —  3  Am.  Eep.  67S;  Woodworth  v.  Bennett.  43 
X'.  Y.  27:;  — 3  Am.  Rep.  706:  Jones  v.  Caswell.  3  Johns.  Cas.  29  —  2  Am. 
Dee.  134:  Stewart  v.  Severance.  4:;  Mo.  322  —  97  Am.  Dee.  392:  Martin 
v.  Blight.  4  J.  J.  Marsh.  491  —  20  Am.  Dec.  226:  Pattison  v.  Josselyn, 
43  Miss.  373:  Arnold  v.  McCord,  16  Ind.  177:  Wooton  v.  Hinkle,  20 
Mo.  290;  Flemming  v.  Hutchison,  36  Iowa,  519;  Mills  v.  Rogers,  2  Litt. 
217  —  13  Am.  Dec.  263.) 

No  Title  Will  Pass  to  the  Fraudulent  Purchaser. 

§  361.  If  the  bidder  at  an  execution  or  judicial  sale  bribes 
or  induces  another  bidder  thereat  by  a  promise  to  pay  him 
a  sum  of  money,  or  other  valuable  consideration,  or  agrees 
with  him  to  divide  the  property  with  him  if  he  refrain  from 
further  bidding,  and  by  the  employment  of  such  mean-  be- 
comes himself  the  successful  bidder  for  a  sum  less  than  would 
otherwise  have  been  realized  but  for  such  fraudulent  acts 
of  the  purchaser,  such  sale  is  fraudulent  and  void.  Xo  title 
will  be  acquired  thereby,  or  by  the  deed  executed  in  consum- 
mation thereof,  as  against  all  parties  whose  rights  have  been 
thus  infringed  upon  by  such  deliberative  fraudulent  machina- 
tions. The  owners  of  the  land  may  recover  the  same  from 
the  purchaser  in  a  proper  action  instituted  for  that  purpose, 
and  need  not,  as  a  pro-requisite  to  the  prosecution  of  such 
suit,  refund  the  purchase  money  paid  by  the  fraudulent  ven- 
.  even  if  it  was  used  in  the  discharge  of  a  mortgage  or 
other  liens  or  incumbranees  upon  the  property,  or  in  the  sat- 
isfaction of  the  judgment  lien  upon  which  the  sale  is  founded. 

oney  expended  by  him  upon  the  real  property  involved,  or 
its  title,  need  not  be  returned  before  commencing  suit  for  re- 
covery  of  the  same. 

The  prevention  of  bidding  at  compulsory  sales  is  consid- 
ered as  being  in  derogation  of  good  policy  and  as  having  a 
tendency  to  the  encouragement  of  fraudulent  and  unfair  deal- 
ing, enabling  a  bidder  to  gain  thereby,  but  at  the  same  time 
precluding  a  possibility  of  sustaining  any  loss.      The  doctrine 


SALES  TO   DISQUALIFIED   PURCHASERS. 

that  such  a  fraudulent  purchaser  is  not  entitled  to  have  his 
m0ney  returned  is  not  enforced  in  the  nature  of  a  pumsh- 
rnt,nor  upon  a  desire  to  aid  the  defrauded  party  because 
0f  the  imposition  and  in  disregard  of  the  principles  of  equity 
tat  rather  upon  the  rule  of  law  that  by  his  wrongful  acts 
■with  which  the  sale  is  environed,  the  purchaser  has  placed 
himself  in  a  position  where  the  court  is  powerless  to  extend  its 
aid   ;n  affording  him  relief.     A  fraudulent  vendees  moutn 
is  dosed  from  asserting  that  equity  is  in  his  favor,  and  conse- 
(|U(,ntlv  mugt  be  denied  the  protection  of  the  court,  for  where 
positive  fraud  is  shown  to  exist  a  court  of  chancery  wil   never 
reimburse  the  vendee  nor  afford  him  indemnity.      Rights  are 
never  founded  upon  fraud,  and  hence,  by  reason  of  his  fraud, 
the  purchaser  is  hold  to  have  forfeited  all  claims  to  the  money 
he  h«  paid  on  his  bid,  or  invested  in  the  betterments  of  the 
estate,  and  has  acquired  no  title  to  the  land  tbus  bought 

(Phelps  v.  Benson.  16!  Pa.  St.  418-29  Atl.  Rep    86;  <M*»£°J£ 
nor,  43  Neb.  49  -  61  N.  W.  Rep.  131 ;  Devine  v.  Harkness   117  1U  Ho 
7  N    F    Ren    52-   Bank  v.  United  States,   148   U.  S.   573-13  Sup.   Ut. 
J  N.  E.  Kep.  s*.   i»n  Perkins  v. 

Ken.  702:  Martin  v.  Hodge,  4,   Ark.  378        1  .  ■       •        I 
Had    105  N.  Y.  539-12  N.  E.  Rep.  48;  Johnson  v.  Moore    33  Kan    90 
-      Pac    Rep.  406;  Hayes's  Estate,  159  Pa.  St.  381-28  Atl    Rep.     58; 

™  n      i  fmf"    -1  Pa    St    321  —  62  Am.  Pee.  336;    Sands  v.   C  od- 

McCraskey  v    Graff,  23  Ra.  St     21  ^  g  ^^  ^ 

W1S2C6  Am  Dc. 5  O^TGiclcTnh^er  ,  Angevine,  81  N.  Y.  394;  Jackson 
^Sunt^le,  13  Pa.  St.  359:  Acer  v.  Hatches,  97  N^Y  395;  Elam 
v  DonaW  58  Tex.  316;  Duteher  v.  Leake.  44  111.  398;  Radway  Co.  v. 
Li  13  Wall.  517;  Burton  v.  Spires.  92  N.  C.  503;  Abbey  v.  Dewey 
05  Pa  St  416;  Martin  v.  Roulett,  5  Rich.  541-57  Am.  Dec.  70;  Jone8 
f  Railway  Co,  32  N.  H.  554;  Aldrich  v.  Maitland,  4  Mich  205;  Crary 
v.  Sprague,  12  Wend.  41 -Am.  Dec.  110;  Fleming  v.  Hutchinson,  36 
Iowa,   519.) 

SALES  TO  DISQUALIFIED  PURCHASERS. 

Are  against  Public  Policy. 

8  302  The  law  is  intolerant  of  and  abhors  and  condemns 
fraud  It  is  a  matter  of  common  understanding  that  incom- 
patible capacities  can  not  be  assumed  in  the  transaction  of 
business  without  encountering  the  possibilities  of  fraud,  lhe 
individual  who  cells  at  a  judicial  or  execution  sale  is  prohib- 
ited from  buying  thereat,  directly  or  indirectly,  as  it  is  m 
derogation  of  the  policy  of  the  law  to  combine  antagomstic 


•'••.'!  VOID   JUDICIAL   AND    EXECUTION    SALES. 

interests  in  one  and  the  same  person.  The  law  demands  al- 
legiance to  the  duties  of  the  imposed  trust  and  requires  the 
officers  to  guard  with  scrupulous  fidelity  the  interests  of  bene- 
ficiaries and  others  whose  property  is  involved,  by  forbidding 
any  of  these  persons  from  buying  at  their  own  sales,  because 
his  interests  as  vendor  and  vendee  would  be  diametrically  op- 
posed. The  latitude  of  the  rule  is  sufficiently  extensive  to  in- 
clude every  one  in  any  manner  concerned  in  selling,  or  vested 
with  authority  to  dispose  of  the  property  of  others  by  sale, 
under  writs,  orders  or  decrees  of  court,  and  is  formulated  upon 
the  theory  that  it  is  violative  of  the  principle  of  morality  for 
one  to  assume  positions  whereby  individual  interest  and  hon- 
esty are  made  t  contending  forces.  Therefore,  the  law  pro- 
hibit- such  persons  from  assuming  the  dual  and  inconsistent 
positions  of  seller  and  purchaser,  and  in  accordance  with  this 
policy  sales  consummated  in  violation  thereof,  are  at  least 
voidable  if  not  void,  and  may  be  vacated  upon  timely  ap- 
plication. 

(Lovett  v.  Morey.  66  X.  H.  273  —  20  Atl.  Eep.  283;  Galbreatb  v. 
Tracy,  153  111.  54  —  3S  N.  E.  Eep.  937:  Caldwell  v.  Caldwell,  45  Ohio 
St.  512  —  15  N.  E.  Eep.  297;  Davis  v.  Hughes,  86  Va.  909  —  11  S.  E. 
Eep.  488;  Hammond  v.  Hopkins,  143  U.  S.  224  —  12  Sup.  Ct.  Eep.  41 S; 
Crump  v.  Ingersoll,  44  Minn.  S4  —  46  X.  W.  Eep.  141;  Taylor  v.  Calvert, 
13S  Tnd.  67  —  37  N.  E.  Eep.  531;  Sheldon  v.  Estate  of  Eice,  30  Mich. 
296;  Hoffman  v.  Harrington,  28  Mich.  90;  McGrnbb  v.  Bray,  36  Wis. 
333;  Michaud  v.  Girod.  4  How.  503;  Drysdale's  Appeal.  14  Pa.  St.  531; 
Harrison  v.  McHenry,  9  Ga.  164  —  52  Am.  Dec.  435 ;  Scott  v.  Gorton, 
14  La.  Ann.  111  —  33  Am.  Dec.  57S;  Howell  v.  Tyler,  91  N.  C.  207; 
Morgan  v.  Wattels,  69  Ind.  260:  Hamblin  v.  Warnecke.  31  Tex.  94; 
Terwillager  v.  Brown,  44  N.  Y.  237;  Flury  v.  Grimes,  52  Ga.  341.^ 

That  the  sale  was  fair  and  honest  otherwise,  is  an  element 
of  no  importance  whatever,  for  it  is  withal  nevertheless  void. 
(Terwilliger  v.   Brown,  44  N.  Y.   237.) 

And  if  the  fiduciary  purchases  the  title  or  interest  prior  to 
the  confirmation  it  falls  within  the  rule  and  will  be  considered 
void. 

(Gibson  v.  Herriott,  55  Ark.  85  —  17  S.  W.  Eep.  589;  Bland  v.  Elee- 
man,  58  Ark.  84  —  23  S.  W.  Eep.  4.) 

Declared  Void  by  Statute  in  Some  States. 

§  363.  Recognizing  the  expediency  of  the  general  rule, 
statutes  have  been  enacted  expressly  declaring  that  all  con- 


SALES   TO    DISQUALIFIED   PURCHASERS.  325 

cerned  in  the  execution  of  the  process  of  the  court  or  order 
of  sale  are  incompetent  as  purchasers  at  the  sale  conducted 
thereunder,  and  are  prohibited  from  having-  any  private  in- 
terest therein;  and  declaring  further  that  a. purchase  made  in 
violation  of  this  inhibition  shall  be  void.  Such  statutes  are 
but  declaratory  of  the  universal  rule  and  policy  of  courts  en- 
forced long  anterior  to  their  enactment,  and  the  policy  and 
statutes  alike  have  their  inception  in  the  salutary  principle  of 
human  conduct  and  maxim  of  morality,  that  it  is  impossible 
for  one  person  to  serve  two  masters  in  good  faith,  when  con- 
flicting interests  are  involved. 

Accordingly,  statutes  forbidding  administrators,  executors 
and  guardians  from  purchasing  directly  or  indirectly  at  their 
own  sales  have  been  construed  as  mandatory,  and  that  the 
term  "  void  "  therein  employed  means  void  collaterally, 

(McGraw  v.  Daly,  82  Mich.  500  —  46  N.  W.  Rep.  671;  Hoffman  v. 
Harrington,  28  Mich.  90:  Terwillager  v.  Brown,  44  N.  Y.  237.) 

while  in  other  states  such  sales  are  held  to  be  voidable  only 
and  the  statute  therefore  but  directory. 

(Melms  v.  Pabst  Brewing  Co.,  93  Wis.  153-66  N.  W.  Rep.  244; 
Axton  v.  Carter.  141  Ind.  672-39  N.  E.  Re]).  546;  Burris  v.  Kennedy, 
108  Cal.  331  —  41  Pac.  Rep.  458:  Comegya  v.  Emerick,  134  lnd.  148  — 
33  N  E  Rep.  SS9;  White  v.  Iselin,  26  Minn.  487  —  5  N.  W.  Rep.  359; 
Lagger  v.  Loan  Association,  146  111.  83-33  N.  E.  Rep.  946;  Murphy 
v.  Teter,  56  Tnd.  545 ;  Dodd  v.  Templeman,  76  Tex.  57  — 13  S.  W.  Rep. 
187.) 

Direct  Purchase  by  Fiduciary  is  Void. 

§  364.  Purchases  directly  by  administrators,  executors, 
guardians  or  other  officers  of  the  court,  at  their  own  sales  are 
void,  not  only  by  reason  of  the  statute  or  the  policy  of  the  law 
forbidding  them,  but  because  of  the  further  reason  that  in  all 
conveyances  there  must  of  necessity  be  a  qualified  vendor  to 
grant  and  a  competent  vendee  to  receive  the  title  or  estate, 
and  that  it  is  absolutely  impossible  for  these  two  to  be  united 
in  one  and  the  same  person.  Such  conveyances  must  not  be 
confounded  with  those  where  the  officer  buys  through  an 
agent  who  tabes  the  conveyance  in  his  own  name  for  the  bene- 
fit of  the  former  who  is  in  fact  the  read  purchaser;  these  latter 
pales  are  almost  bu1  not  quite  universally  held  voidable,  but 
the  former  may  well  be  considered  unconditionally  void. 


326  VOID   JUDICIAL   AND   EXECUTION   SALES. 

(Green  v.  Holt.  76  Mo.  677;  Gibson  v.  Herriott.  55  Ark.  85  —  17  S.  W. 
Rep.  689;  Hamblin  v.  Warnecke,  31  Tex.  94:  Remick  v.  Butterfleld.  31 
X.  H.  70  —  64  Am.  Dee.  316;  Hindman  v.  O'Connor.  54  Ark.  627  — 
16  S.  W.  Rep.  1052;  Bland  v.  Muncaster,  24  Miss.  62  —  57  Am.  Dec.  162; 
Dwight  v.  Bla&anar,  2  Mich.  330  —  47  Am.  Dec.  130;  Stapp  v.  Toler, 
3  Bibb.  450;  Boyd  v.  Blankman.  29  Cal.  19  —  87  Am.  Dec.  146;  Comegys 
V.  Emerick.  134  Ind.  148  —  33  N.  E.  Rep.  889;  Valentine  v.  Wysor,  123 
Ind.  47  —  23  X.  E.  Rep.  1076.) 

So  in  Alabama  under  the  statute  it  is  held  that  a  sale  made 
by  an  administrator  under  the  order  of  the  court  is  void  col- 
laterally where  the  fiduciary  himself  becomes  the  purchaser 
and  no  notice  of  the  proceedings  after  the  sale  was  given  to 
the  heirs  as  by  statute  required. 

(Allison  V.  Allison,  114  Ala  393  —  21  So.  Rep.  1008;  Bogert  v.  Bell, 
112  Ala.  412  —  19  So.  Rep.  370;  Lyon  v.  Lyon.  84  Ala.  555—4  So.  Rep. 
405.) 

Purchase  by  Sheriff  or  Constable. 

§  '<i".  Under  the  statutes  in  force  in  many  of  the  states, 
sales  under  executions  by  sheriffs  and  constables  in  which 
they  are  interested  have  been  decided  to  be  void. 

(State  v.  Jeter.  60  Ga.  489;  Wickliff  v.  Robinson,  18  111.  145;  Wood- 
bury v.  Parker.  19  Vt.  353  —  47  Am.  Dec.  695 ;  Harrison  v.  Mcllenry, 
9  Ga.  164  —  52  Am.  Dec.  435;  Chandler  v.  Moulton,  33  Vt.  247:  Robin- 
son v.  Clark,  7  Jones,  562  —  78  Am.  Dec.  265 ;  Johnson  v.  P;yor,  5  Hayw. 
243.) 

Though  elsewhere  it  is  held  that  under  a  statute  declaring; 
that  a  sale  made  to  the  officer,  or  to  one  of  the  appraisers,  is 
void,  it  is  held  that  the  term  "  void  "  is  to  be  construed  as 
meaning  voidable  only,  and  a  sale  therefore,  made  in  contra- 
vention of  the  statute,  is  not  a  nullity. 

(Terrill  v.  Anchauer.  14  Ohio  St.  80;  McKeighan  V.  Hopkins.  19  Xeb. 
34—26  X.  W.  Rep.  614;  Reno  v.  Hale.  28  Xeb.  646  —  44  X.  W.  Rep. 
996;   Sparling  v.  Todd.  27  Ohio  St.  521.) 

Purchases  by  Judges  or  Attorneys  in  the  Case. 

§  366.  The  rule  of  law  that  forbids  the  functionary  of  the 
court  from  becoming  interested  in  the  sale,  applies  with  equal 
force  to  the  judge  of  the  probate  court  and  prevent-  him  from 
purchasing  property  at  sales  under  orders  issued  by  him  in  his 
official  capacity. 

(Freiburg  v.  Isbell,  25  S.  W.  Rep.  988;  Livingston  v.  Cochran,  33 
Ark.   294.) 


SALES   TO   DISQUALIFIED   PURCHASERS.  ^7 

And  in  Arkansas  if  is  held  that  the  attorney  by  whom  the 
petition  was  prepared  and  died,  and  order  of  probate  sale  was 
obtained,  is  incompetent  to  become  a  purchaser  at  the  sate, 
the  principle  that  justice  will  not  allow  the  purchase  by 
,IU  attorney  of  things  in  course  of  litigation  wherein  he  has 
the  management; 

(West  v.   Waddill,  33  Ark.  575.) 

while  in  Missouri  the  attorney  for  the  administrator  is  permit- 
ted to  buy  the  property  at  the  sale  under  the  order  oi  the 
court  and  the  sale  will  be  upheld  if  otherwise  sufficient. 
(Grayson  v.  Weddle,  63  Mo.  523.) 

However,  when  a  judicial  sals  is  questioned  in  a  proper 
proceeding  on  the  -round  that  the  attorney  in  the  case  was  the 
purchaser,  to  substantiate  his  claim  as  such  he  must  show 
that  the  bargain  was  as  good  as  could  have  been  obtained,  by 
the  exercise  of  due  diligence,  from  others;  and  this  not  be- 
cause the  attorney  is  incapacitated  from  buying  m  the  sub- 
ject of  the  action,  but  from  motives  of  public  policy  requiring 
absolute  good  faith  and  scrupulous  fidelity  on  the  part  of  all 
concerned  in  the  sale.     This  rule,  which  considers  a  sale  to  the 
attorney  as  being  in  the  twilight  between  legal  fraud  and  to- 
ne^   it  seems  t<>  us  is  sound  in  principle  and.  consonant  to 
reason,  public  policy  and  the  analogies  of  the  law. 
(Burke  v.   Daly,   14  Mo.  App.   542.) 

But  a  purchase  under  execution  by  a  justice  of  the  peace 
who  issued  the  writ,  while  there  is  manifest  indelicacy  and  im- 
propriety in  such  a  purchase,  is  not  void,  nor  voidable,  as  it  is 
held  uot  to  be  in  contravention  of  law  nor  in  derogation  of  the 
principles  of  public  policy,  as  the  justice  has  nothing  to  do 
with  the  sale  in  his  official  capacity. 

(Smith  v.  Perkins.  SI  Tex.  152-16  S.  W.  Rep.  805.) 

Purchase  by  Administrator  After  the  Sale. 

8  367  Even  if  the  purchase  by  an  administrator  at  his 
own  sale  be  void,  either  by  provision  of  statute,  or  on  general 
principles,  it  is  held  that  a  bona  fide  purchase  by  him  subse- 
quent to  the  sale  from  one  who  purchased  m  good  faith  is 

™(lnl  v.  Kennedy,  107  Mich.  312-65  X.  W.  Rep.  219;  Welch  v.  Mc- 
Grath,   59    Iowa.   519—10  N.  W.   Rep.   810.) 


32S  VOID   JUDICIAL   AND   EXECUTION    SALES. 


SECRET  FRAUDS  AXD   INFIRMITIES  INEFFECT- 
UAL ON  TITLE  OF  PURCHASER. 

Fraud  Vitiates  the  Sale. 

§  368.  The  law  is  intolerant  toward  every  fraudulent  or  col- 
lusive device,  scheme,  combination  or  contrivance  whereby 
undue  or  unconscionable  advantage  is  sought  to  be  obtained 
over  others.  Public  policy  discourages  and  condemns  fraud 
of  every  nature,  and  forbids  anyone  to  reap  profit  from  his 
own  iniquitous  conduct.  Nor  will  it  permit  one  to  participate 
in  the  apportionment  of  the  fruits  of  fraud  resulting  from 
the  fraudulent  devices  or  contrivances  perpetrated  by  others 
of  which  he  is  cognizant. 

Official  or  public  sales  may  be  invalidated  by  reason  of  a 
collusive  scheme  among  the  bidders  concocted  to  obtain  the 
property  about  to  be  offered  at  an  under  value,  in  which  case 
the  unrighteous  enterprise  is- the  perpetration  of  a  fraud  upon 
the  judgment  debtor;  or  the  collusion  may  exist  between  the 
officer  or  vendor  and  others  to  inordinately  inflate  the  price, 
in  which  alternative  the  purchaser  is  the  sufferer  by  the 
illegitimate  contrivance  and  is  entitled  to  complain  of  the 
wrong.  Upon  considerations  of  public  policy  courts  entertain 
strong  inclinations  for  upholding  judicial  sales,  yet  notwith- 
standing these  considerations,  sales  consummated  in  bad  faith, 
will  not  be  sustained,  equity  compelling  a  relinquishment  of 
the  unconscionable  advantage  obtained  by  the  purchaser  by 
virtue  of  fraudulent  devices  or  contrivances,  if  timely  applica- 
tion is  made  therefor. 

(Goble  v.  O'Connor,  43  Neb.  49  —  Gl  N.  W.  Rep.  131;  Ingalls  v. 
Rowell,  149  111.  163  —  36  N.  E.  Rep.  1016;  Devine  v.  Harkness,  117  III. 
145  —  7  N.  E.  Rep.  52;  In  re  Hayes"  Estate,  159  Pa.  St.  3S1  —  28  Atl. 
Rep.  158;  Lloyd  v.  Malone,  23  111.  43;  Barton  v.  Hunter,  101  Pa.  St. 
406;   Wilson  v.  Kellogg,   77  111.   4~.) 

And  a  resort  to  equity  is  not  necessary  to  obtain  a  relin- 
quishment of  the  title  acquired  by  fraudulent  devices  and  con- 
trivances while  the  same  is  yet  held  by  the  fraudulent  vendee, 
for  in  such  case  the  sale  is  considered  as  absolutely  void  and 
may  be  vacated  upon  motion  and  is  subject  to  collateral  im- 
peachment. 

(Phelps  v.  Benson,  L61  Pa  St.  418  —  29  Ail.  Rep.  86;  Gilbert  v.  Hoff- 
man,  2  Watts,  6G  — 26  Am.  Dec.  103;   Bunts  v.  Cole,  7  Blackf,  265  —  41 


SECRET  FRAUDS    AND    [NFIKMITIES    INEFFECTUAL  329 

Am.  Dec.  226;  Bethel  v.  Sharp,  25  111.  17:?  — 70  Am.  Dec.  790;  Gilbert 
v.  Carter.  10  Inch  16  —  68  Am.  Dec.  655;  Turner  v.  Adams,  46  Mo.  95; 
Griffith  v.  Judge,  49  Mo.  5S6;  Fausl  v.  Haas.  7:;  Pa.  St.  205.) 

A  distinction  is  sometimes  drawn  between  fraud  of  the 
plaintiff  or  purchaser  alone  without  any  conspiracy  with  the 
sheriff,  and  a  case  of  collusion  between  the  sheriff  and  pur- 
chaser, holding  that  in  the  former  the  sale  is  voidable  only 
and  subject  to  being  set  aside  by  proceedings  in  equity,  while 
in  the  latter  case  the  sale  is  void  at  law,  and  everyone  inter- 
ested in  the  property  sold  may  take  advantage  of  the  defect. 

(Burton  V.  Spires.  92  N.  ('.  503;  Hill  v.  Whitfield,  3  Jones,  120;  Un- 
derwood v.  McVeigh,  23  Gratt.  409.) 

Purchaser  Free  From  Negligence  and  Fraud  is  Protected. 

§  369.  It  is  an  established  principle  of  jurisprudence  that  a 
purchaser  at  an  execution  or  judicial  sale  who  is  free  from 
negligence,  is  protected  in  the  title  acquired  by  him  at  such 
sale,  as  against  any  secret  frauds,  devices,  machinations  or  ir- 
regularities, with  which  he  has  no  connection,  or  in  which  he 
has  not  participated,  or  of  the  existence  of  which  he  was  not 
cognizant  when  he  purchased.  This  protection  extended  by 
law  is  founded  upon  considerations  of  public  policy  demand- 
ing confidence  in  judicial  proceedings  to  insure  ready  sales 
and  avoid  the  possibilities  of  sacrifice  at  compulsory  sales, 
when  the  proceedings  are  otherwise  fair  and  regular. 

Manifestly,  when  the  purchaser  has  discovered  that  the 
general  jurisdiction  is  ample,  and  the  proceedings  necessary 
to  invoke  that  jurisdiction  in  the  particular  proceeding  are 
sufficient,  and  having  discovered  this  he  is  not  bound  to  look 
further  than  the  writ,  order  of  sale  or  decree.  Such  inno- 
cent third  person  can  not  he  deprived  of  his  rights  by  reason 
of  secret  vices  or  infirmities,  or  subsequently  ascertained  er 
ror-  or  irregularities,  which  may  have  happened  either  an- 
tecedent or  subsequent  to  the  execution  or  decree. 

(Hudepohl  v.  Water  Co.,  04  Cal.  588  —  29  Pac.  Eep.  1025;  Linman  v. 
Riggins,  40  La.  Ann.  761  —  5  So.  Rep.  19;  De  Lancy  v.  Knapp,  111  Cal. 
165  —  43  Pac.  Rep.  598;  Stotts  v.  Brookfield,  55  Ark.  307  —  18  S.  \Y. 
Rep.  J79:  Riley  v.  Martinelli,  97  Cal.  575  —  32  Pac.  Hep.  579;  Garden  v. 
Lane,  48  Ark.  216  —  2  S.  W.  Rep.  709;  Massie  v.  Brady,  -II  La.  Ann. 
553  —  6  So.  Rep.  536;  Buckmaster  v.  Carlin,  3  Scam.  104;  Reeve  v.  Ken- 
nedy, 4:;  Cal.  643;  Wisdom  v.  Buekner,  31  la.  Ann.  52;  Voorhis  v.  Bank, 
10  Pet.  449;  Duckworth  v.  Vaughn,  27  I. a.  Ann.  599;  Zeigler  v.  Shomo, 


330  VOID   JUDICIAL   AND   EXECUTION    SALES. 

73  Pa.  St.  357 ;  Winston  v.  Otley,  25  Miss.  451 ;  Butterfield  v.  Walsh,  36 
Iowa,  534;  Thorpe  v.  Beavans,  73  N.  C.  241;  Wallace  v.  Loomis,  97  U.  S. 
146;  Maina  v.  Elliott,  51  Cal.  8.) 

Hence,  when  the  purchaser  is  a  stranger  to  the  judgment, 
he  is  charged  with  the  duty  of  ascertaining  that  an  authorized 
functionary  is  making  the  sale,  and  that  he  is  empowered  in 
this  regard  by  a  court  of  competent  jurisdiction,  and  having 
no  notice  of  any  fraud  or  irregularity,  his  title  is  good. 

(Williams  v.  Johnson.  112  N.  C.  424—17  S.  E.  Rep.  496;  Shannon  v. 
Newton,  132  Pa.  St.  375  —  19  Atl.  Pep.  138;  James  v.  Mayer,  41  La. 
Ann.   1100  —  7  So.  Rep.  618.) 

The  title  of  a  purchaser  in  good  faith  and  for  value  at  a 
judicial  sale  is  invulnerable  against,  an  assault  wherein  it  is 
attempted  to  be  shown  that  the  order  or  decree  of  sale  was 
procured  by  fraudulent  machinations  and  misrepresentations 
of  others,  of  which  he  is  neither  chargeable  with  notice,  nor 
guilty  of  participation  therein. 

(Swift  v.  Yanaway,  153  111.  197  —  38  N.  E.  Pep.  589 ;  Wadham  v.  Gay, 
73  111.  415;  Myer  v.  McDougal,  47  111.  278;  Sibert  v.  Thorp.  77  111.  43; 
McCowan  v.  Foster.  33  Tex.  241.) 

Nor  can  the  rights  of  innocent  purchasers  at  sales  by  ad- 
ministrators and  guardians  be  impaired  by  the  production  of 
proof  of  errors,  fraud  or  mistakes  on  the  part  of  the  fiduciary 
subsequent  to  the  order  or  license,  in  conducting  the  sale 
thereunder,  in  the  absence  of  complicity  on  the  part  of  the 
purchaser. 

(Staples  v.  Staples,  24  Gratt.  225:  Jones  v.  Clark.  25  Gratt.  642;  Blood 
v.  Hainan.  13  Met.  231;  Gwinn  v.  Williams,  30  Ind.  374;  Patterson  v. 
Lemon,   50  Ga.   231.) 

Judgment  Creditor  not  an  Innocent  Purchaser. 

§  370.  The  rule  that  a  purchaser  at  an  execution  sale  will 
take  a  good  title  if  the  court  had  properly  acquired  jurisdic- 
tion and  had  empowered  the  proper  officer  to  make  the  sale 
has  no  application  where  the  plaintiff  in  the  judgment  and 
execution  is  the  purchaser,  as  the  law  presumes  that  he  is 
cognizant  of  all  defect-  and  imperfections  in  the  record,  and 
he  will  not  be  protected  as  a  bona  fide  purchaser. 

(Collins  v.  Smith,  57  Wis.  2S4  —  15  N.  W.  Rep.  192;  Smith  v.  Huntoon, 
134  111.  24  —  24  N.  E.  Rep.  971;  Corwith  v.  Bank.  15  Wis.  289 ;  Morris 
v.  Roby,  73  111.  G42 ;   Twogood  v.  Franklin,  27  Ga.  239;   King  v.  Cush- 


SECRET  FRAUDS   AND   INFIRMITIES    IXEFFF. CTUAL-  331 

man.  41  Dl.  31  ;  IM.1  v.  Brayer,  30  Ind.  332;  Stephens  v.Dennison,  1  Ore. 
19;   Stewart  v.  (  roes,  5  Gilm.  4-12.) 

And  as  a  genera]  rule  a  purchaser  at  a  judicial  sale  is  con- 
clusively presumed  to  have  notice  of  all  facte  disclosed  by  the 
record  of  the  proceedings  touching  the  rights  of  others  m  the 
particular  property  thus  sold. 

(Williamson  v.  Jones,  43  W.  Va.  562-27  S.  E.  Rep.  411;  Stent  v. 
Mercantile  Co.,  41  \Y.  Va.  339-23  S.  K.  Rep.  571;  Wood  v.  Ktebbs, 
30  Gratt.  708. 

And  if  the  judgment  creditor  buys  the  lands  of  the  de- 
fendant in  execution,  and  thereafter  conveys  the  property  to 
the  attorney  who  instituted  the  suit,  the  latter  gets  no  better 
title  than  the  former  would  have  obtained,  as  he  is  chargeable 
with  notice  equally  with  the  judgment  creditor. 

(Culver  v.   Phelps,   130  111.  217-22  N.  E.  Rep.  809.) 

Property  Charged  with  Liens  and  Trusts. 

§  371  If  the  purchaser  of  land  sold  under  execution  is  pos- 
sessed with  knowledge  of  the  fact  that  the  property  is  charged 
with  a  resulting  trust  in  favor  of  some  third  person,  he  takes 
the  premises  subject  thereto,  upon  the  principle  that  a  sher- 
iff's vendee  with  notice  buys  just  what  the  judgment  creditor 
can  sell  under  the  execution,  which  is  the  actual  interest  of 

the  defendant.  . 

(Miller  v.  Baker.  166  Pa.  St.  414-31  Atl.  Rep.  121;  Lewis  v.  Taylor, 
96  Ky.   566  —  29   S.  W.   Rep.   444.) 

But  on  the  other  hand,  where  the  execution  purchaser  com- 
plies with  the  terms  of  his  bid  by  paying  the  amount  thereof 
without  notice  that  the  property  was  incumbered  with  an  un- 
recorded vendor's  lien,  notwithstanding  he  receives  notice  ot 
such  lien  prior  to  receiving  his  deed,  he  takes  the  property  un- 
affected by  the  lien,  of  the  existence  of  which  he  had  neither 
actual  nor  constructive  notice  when  he  bought  the   land. 

(Maroney  v.  Boyle,  141  N.  Y.  462-36  N.  E.  Rep.  511.) 
Innocent  Purchaser  from  Fraudulent  Vendee. 

8  372  Should  the  original  purchaser  at  an  execution  or 
judicial  sale  be  guilty  of  entering  into  collusion,  or  fraudulent 
schemes  or  devices  regarding  the  preperty  involved,  or  m  he 
absence  of  such  complicity  should  he  be  cognizant ;  of  the 
fraudulent  devices  and  machinations  practiced  by  others,  he 


332  VOID   JUDICIAL   AND   EXECUTION    SALES. 

may  yet,  notwithstanding  his  participation  in  or  knowledge 
of  such  fraud,  transmit  a  valid  and  unimpeachable  title  to  one 
who  purchases  from  him  for  value  and  in  good  faith,  having 
no  notice  of  the  fraud  or  infirmity.  The  sale  originally  was 
voidable  and  capable  of  being  avoided  at  the  instance  of  inter- 
ested parties,  and  the  transfer  of  the  voidable  title  to  an  inno- 
cent purchaser  for  a  valuable  consideration  and  without  no- 
tice, passes  the  title  free  from  such  infirmity  in  his  hands. 

(Staples  v.  Staples.  23  Gratt.  225;  Kilgore  v.  Beck.  40  Ga.  293;  Snow 
v.  Hawpe,  22  Tex.  168;  Blood  v.  Haman,  13  Met.  231;  Robbins  v.  Bates, 
4  Cush.  104;   Gwinn  v.  Williams,  30  Ind.  374.) 

Therefore,  where  the  guardian  was  authorized  to  sell  the 
ward's  lands,  was  himself  indirectly,  but  really,  the  purchaser 
at  his  sale,  the  proceedings  are  voidable,  though  ostensibly 
made  to  a  stranger,  the  land  passing  to  the  nominal  purchaser 
subject  to  being  divested  for  fraud.  But  the  right  to  avoid 
it  is  restricted  to  the  nominal  purchaser,  and  those  holding 
under  him  with  notice  of  the  circumstances  which  environ 
the  proceedings,  or  a  purchaser  from  the  original  vendee  hav- 
ing not  paid  an  adequate  consideration.  A  bona  fide  pur- 
chaser from  the  original  vendee  before  the  sale  is  vacated  re- 
ceiver an  unimpeachable  title. 

(Wyman  v.  Hooper.  2  Gray,  141;  Robbins  v.  Bates,  4  Cush.  104; 
Walker  v.  Walker,  101  Mass.  169;  Pomes  v.  Brewer,  2  Pick.  184.) 

So  a  purchaser  for  value  and  without  notice  from  a  claim- 
ant who  purchased  from  an  administrator  under  an  order  of 
sale  based  upon  fictitious  claim-  allowed  by  the  fraud  and 
collusion  of  the  fiduciary  and  purchasing  claimant,  will  be 
protected  in  his  purchase,  notwithstanding  the  fraud  of  his 
grantor. 

(Martin  v.  Robinson,  67  Tex.  368  —  3  S.  W.  Rep.  550;  George  v.  Wat- 
son.  19  Tex.   369;   Dancy  v.   Strickling.   15  Tex.   564.) 

An  innocent  purchaser  for  value  from  a  fraudulent  vendee 
at  a  sale  under  execution  issued  upon  a  judgment  obtained 
through  collusion  or  connivance,  will  not  be  affected  by  the 
fraud  and  will  take  a  good  title,  though  the  sale  was  void 
as  to  the  fraudulent  vendee  at  the  execution  sale. 

(Price  v.  Junkin.  4  Watts,  85  —  28  Am.  Dec.  685;  Fetterman  v. 
Murphy.  4  Watts.  424  —  :2s  Am.   Dec.   729.) 


SECRET  FRAUDS  AND   INFIRMITIES   INEFFECTUAL.  333 

That  the  writ  of  execution  issued  without  the  authority  of 
the  judgment  creditor, 

(Sowles  V.   Harvey,  20  Ind.  217-83  Am.  Deo.   315.) 

or  the  -ale  took  place  in  violation  of  an  agreement  to  adjourn 
to  some  definite  time,  are  all  unavailing  to  impeach  the  title 
resulting  under  an  execution  sale  in  the  absence  of  .he  pur- 
chaser's knowledge  of  such  fraud  or  irregularity. 

(Williams  v.   Doran,  23  X.  J.   Eq.  385.) 

Judgment  in  Fact  Satisfied  but  Record  Silent. 

8  373  In  Pennsylvania  it  is  held  that  while  a  vendee  at  a 
sheriff's  sale  gets  no  title  if  the  sale  is  founded  upon  a  satis- 
fied judgment,  the  record  of  which  do,-  not  -how  satisfac- 
tion but  that  the  same  was  satisfied  was  known  to  the  pur- 
chaser, vet  his  vendee  who,  having  purchased  for  value  and 
without  notice,  acquires  a  good  title. 

(Hoffman  v.  Strohecker,  7  Watts.  86-32  Am.  Dee.  740:  Meigs  y 
Bunting.  141  Pa.  St.  233-21  Atl.  Rep.  5SS;  Saunders  v.  Gould.  134 
Pa.   St.   445  —  19   Atl.   Rep.   694.) 

But  by  the  weight  of  authority  founded  upon  principle, 
reason  and  expedient,  no  one  can  acquire  title  under  a  sale 
founded  upon  a  satisfied  judgment,  as  the  rule  of  bona  fide 
purchaser  and  its  consequent  protection  has  no  application  to 
a  purchaser  under  a  sale  upon  a  satisfied  judgment. 

Benton  v.  Hatch,  122  N.  Y.  322-25  N.  E.  Rep.  486;  Soukup  V. 
Investment  Co.,  84  Iowa,  448-51  N.  W.  Rep.  167;  Terry  v.  O  Neal 
71  Tex  59o_9  S  W.  Rep.  673;  Miller  V.  Morrison.  43  Kan.  446  —  ^ 
Pac.  Rep.  612;  Clute  v.  Emerick,  99  N.  Y.  342-2  N.  E.  Rep.  6;  Rey- 
nolds v.  Lincoln,  71  Cal.  183-9  Pac.  Rep.  176;  Huber  v  J*Mer ,94 
Mo.  332  —  7  S.  W.  Rep.  427;  Billiard  v.  MeArdle,  98  Cal.  35o  -  33  lac. 
Rep.   193.) 

Misappropriation  of  Purchase  Money. 

§  374.  The  purchaser  at  a  sale  by  an  administrator,  ex- 
ecutor or  guardian,  or  by  a  sheriff  under  execution,  is  not 
bound  to  see  to  the  application  of  the  proceeds  arising  from 
the  sale.  He  is  under  no  obligations  to  see  that  funds  are 
not  misappropriated  by  the  officer,  for  he  may  presume  that 
the  monev  is  properly  applied,  and  that  the  officer  or  fiduciary 
performs  his  duty  in  this  regard.  The  application  or  invest- 
ment of  the  proceeds  of  an  execution  or  judicial  sale  is  a  mat- 
ter wholly  foreign  to  the  purchaser,  and  however  unwise  or 


334  TOID   JUDICIAL   AXD   EXECUTION   SALES. 

illegal  the  disposition  of  the  funds  may  be,  it  can  not  affect 
his  title. 

(Kendrick  v.  Wheeler,  85  Tex.  247  —  20  S.  W.  Rep.  44;  Farrington  v. 
Duval.  32  S.  C.  590  —  10  S.  E.  Rep.  944;  Bank  v.  Carpenter,  7  Ohio,  21 
—  2S  Am.  Dec.  616;  Mulford  v.  Stalzenbeek,  46  111.  303;  Knotts  v. 
Stearns,  91  U.  S.  638;  Mulford  v.  Beveridge,  78  111.  456:  Long  v.  O'Fal- 
lon,  19  How.  116;  Cochran  v.  Van  Surlay,  20  Wend.  365;  Allman  v. 
Taylor.  101  111.  185;  Giles  v.  Pratt,  1  Hill.  239  —  26  Am.  Dec.  170; 
Barnes  v.  Light  Co.,  27  N.  J.  Eq.  33;  Cooper  v.  Horner,  62  Tex.  356.) 

Purchase  Money  not  Fully  Paid. 

§  375.  Because  the  purchaser  did  not  pay  the  amount  of  his 
bid  until  some  time  after  the  sale  can  not  operate  to  the 
prejudice  of  the  interest  or  title  of  an  innocent  purchaser  hav- 
ing bought  in  good  faith,  and  who  is  governed  by  the  offi- 
cer's deed  executed  in  consummation  of  the  sale.  If  there 
was  no  stipulation  for  credit  the  sheriff's  deed  is  not  void  be- 
cause the  money  was  not  paid  until  some  time  afterward. 

(Maina  v.  Elliott.  51  Cal.  8;  Longfellow  v.  Quimby,  29  Me.  196;  An- 
derson v.  Rider,  46  Cal.  134.) 

In  Alabama  under  a  statute  providing  that  the  adminis- 
trator's deed  shall  be  made  only  after  the  payment  of  the 
whole  of  the  purchase  price  it  is  held  that  the  purchaser  or 
his  assignee  has  no  right  to  a  deed  until  after  such  payment, 
and  that  notwithstanding  the  officer  makes  a  false  report  that 
the  payment  had  been  made,  and  a  full  and  complete  com- 
pliance by  the  purchaser  with  the  terms  of  sale,  and  a  con- 
firmation of  the  sale  was  thereupon  had  and  conveyance  exe- 
cuted, the  proceedings  are  insufficient  to  divest  the  title  of 
the  heirs,  and  the  sale  and  deed  are  void. 

(Gardner  v.  Kelso<,  80  Ala.  497  —  2  So.  Rep.  680:  Corbitt  v.  Clenny, 
52  Ala.  480;  Wallace  v.  Nichols,  56  Ala.  321;  Cruikshank  v.  Luttrell,  67 
Ala.  318.) 

But  this  ruling  can  only  be  justified  by  the  statute,  as  the 
confirmation  of  the  court  and  the  execution  and  delivery  of 
the  deed  complete  the  sale,  and  the  accountability  of  the 
officer  for  the  proceeds  is  a  matter  between  the  fiduciary  and 
the  heirs.  The  fraud  and  connivance  between  the  adminis- 
trator and  his  immediate  vendee,  upon  principle  and  author- 
ity, can  not  affect  a  subsequent  bona  fide  purchaser  for  value 
from  the  original  vendee. 

(King  v.  Cabaniss,  81  Ga.  661  —  7  S.  E.  Rep.  620.) 


SECRET  FEAUDS  AND   INFIEMITIES   [NEFFECTTJAL.  335 

Omission  of  Return  or  Defective  Return. 

§  376.  The  failure  of  the  sheriff  to  make  a  proper  return, 
or  an  entire  omission  of  a  return  to  an  execution,  is  deemed 
but  a  mere  irregularity  according  to  the  great  weight  of  au- 
thority, and  therefore,  upon  principle,  the  title  of  the  pur- 
chaser is  not  dependenl  upon  such  return,  and  its  imperfec- 
tions or  omission  will  not  avoid  the  -ale. 

(Hibbard  v.  Smith,  67  Cal.  547-  1  Pac.  Rep.  473;  King  v.  Duke.  31 
S.  W.  Rep.  335;  .Mills  v.  Lombard,  32  Minn.  259-  20  X.  W.  Rep.  187; 
Bitter  v.  Scannel,  11  Cal.  238-  70  Am.  Dec.  775;  Doe  v.  Rue,  4  Blackf. 
263  —  29  Am.  Dee.  368;  Leshey  v.  Gardner,  3  W.  &  s.  314  —  38  Am. 
Dec.  764;  Hinds  v.  Scott.  11  Pa.  St.  19  —  51  Am.  Dec.  506;  Hunt  v. 
Louks.  38  Cal.  372  —  99  Am.  Dec.  404;  Holman  v.  Gill,  107  111.  467; 
Cadwdl  v.  Blake,  69  Me.  458;   Bray  v.  Marshall,  75  Mo.  327.) 

Though  in  some  states,  particularly  where  the  doctrine  of 
extent  obtains,  a  return  is  essential  to  the  validity  of  the  pur- 
chaser's title,  and  constitutes  an  indispensable  muniment  in 
the  chain  of  title,  and  must  be  complete  and  in  strict  compli- 
ance with  the  requirements  of  the  statute,  or  else  the  title  fails 
because  the  extent  fails,  which  creates  the  lien. 

(Wilcox  v.  Emerson,  in  R.  1.  270  —  14  Am.  Rep.  683;  Sleeper  v.  Semi- 
nary. 19  Vt.  451;  Preseott  v.  Pettee,  3  Pick.  331;  Bates  v.  Willard,  10 
Met.  62;  Bissell  v.  Mooney,  33  Conn.  411;  Walsh  v.  Anderson,  135 
Mass.  G5.) 

Purchase  Money  Must  be  Paid  to  Proper  Officer. 

§  377.  While  it  is  a  matter  of  no  concern  to  the  purchaser 
what  disposition  is  made  of  the  purchase  money  arising  from 
a  judicial  or  execution  sale,  yet  it  is  incumbent  upon  him  to 
sec  to  it  that  he  pays  the  money  to  the  proper  person  author- 
ized to  receive  it. 

(Wood  v.   Ellis,  85  Va.  471—7  S.  E.  Rep.  852.) 

Accordingly,  where,  a  bond  is  required  of  a  commissioner 
appointed  to  make  a  sale  before  receiving  the  money  realized 
therefrom,  if  the  purchaser  pays  money  to  such  commissioner 
without  such  bond  having  boon  given,  he  does  so  at  his  own 
personal  risk,  even  though  the  commissioner  was  the  attorney 
of  the  judgment  creditor. 

(Shumate  v.  Williams,  94  Va.  250  —  22  S.  E.  Rep.  808.) 


336  VOID  JUDICIAL   AND   EXECUTION   SALES. 

Pre-existing  Equities  and  Unrecorded  Deeds. 

§  378.  Execution  purchasers  like  subsequent  innocent  pur- 
chasers are  protected  against  unrecorded  deeds  and  incum- 
brances of  which  they  had  neither  actual  nor  constructive 
notice; 

(Lusk  v.  Keel,  36  Fla.  418—18  So.  Rep.  582;  Emerson  v.  Ross,  17 
Fla.    122.) 

and  when  the  judgment  creditor  has  neither  actual  nor  con- 
structive notice  of  an  unrecorded  deed  executed  by  the  judg- 
ment debtor  prior  to  the  rendition  of  the  judgment,  it  is 
wholly  immaterial  whether  the  purchaser  at  a  sale  under  exe- 
cution emanating  from  such  judgment,  is  or  is  not  cognizant 
of  such  prior  unrecorded  deed,  as  he  takes  the  property  unaf- 
fected thereby. 

(Doyle  v.  Wade,  23  Fla.  90—1  So.  Rep.  516.) 

So  it  is  held  in  Alabama  under  the  doctrine  of  caveat 
cm  pi  or  that  the  title  of  the  grantee  in  a  sheriff's  or  adminis- 
trator's deed  is  subject  to  all  pre-existing  equities  in  favor  of 
third  persons  against  the  execution  defendant  or  decedent. 

(Lindsay  v.  Cooper,  94  Ala.  170  — 11  So.  Rep.  325;  Goodbar  v.  Daniels, 
88  Ala.  583  —  7  So.  Rep.  254;  demons  v.  Ccx,  114  Ala.  350  —  21  So. 
Rep.  426;  Thomas  v.  Glazener,  90  Ala.  538  —  8  So.  Rep.  153;  Lovelace 
v.  Webb,  62  Ala.  271.) 


Chapter  V. 

Confirmation  and  Deeds. 


ANALYSIS. 

Section  379.  Meaning   of   Confirmation  -  Is   the   Judicial    Sanction   of 
the  Sale. 

380   ~ What  Matters  are  Cured  bv  Confirmation  and  What 

Not. 

381.  Confirmation   Essential   to   Title  — Sale   is   Not   Complete 

until  Confirmation. 
382-  After  Confirmation  Purchaser  is  the-  Owner. 

383.  Confirmation  Discretionary  —  Is  in  Sound  Legal  Discretion 

of  Court. 

384.  Abuse  of  Discretion  Corrected  on  Appeal. 

385.  General  Effect  of  Confirmation  — The  General  Scops  of  the 

Order. 
386-  Effect  where  Jurisdiction  had  Attached. 

387.  In   Sales  under  Execution. 

388.  Court  Adopts  Proceedings  of  Officer. 

389.  Notice   of   the   Application   for   Order   of   Confirmation  — 

Where  Statute  Requires  Notice  to  be  Given. 
39°-  Effect  of  Confirmation  Entered  Without  Notice. 

391.  How    Confirmation    Shown  —  Generally    Required    to    be 

Shown  Affirmatively. 

392.  When  Confirmation  Presumed. 

393-  Confirmation  by  Estoppel. 

394-  May  be  Annulled  but  Not  Collaterally. 

395.  What    Irregularities    are    Cured    by    Confirmation  —  Ap- 
praisement or  Inquisition  Wanting. 

396-  '  Defects  in  Notice  or  Want  of  Notice. 

397-  Sale  at  Wrong  Time  or  Place  or  Person. 

398.  Departures  from  Order  or  Decree. 

399. Defective  Bond  or  Omission  to  Give  Bond. 

40°-  Other  Irregularities  Cured. 

4()1-  Sales  without  Notice  or  Order. 

402.  Defects  Considered  Incurable  by  Confirmation 

403.  Deed  Essential   to   the   Transfer  of  Legal   Title  — In  Ju- 

dicial and   Probate  Sales. 

404.  In  Execution   Sales. 

4°5-  In  Several  States  Deed  not  Essential 

22 


338  VOID    JUDICIAL    AND    EXECUTION    SALES. 

Section   406.  When,  by  Whom,  and  to  Whom.  Deed  to  be  Made  —  By 
Whom  Deed  Executed  in  Execution  Sales. 

407.  By  Whom  Deed  Made  in  Chancery  and  Probate  Sales. 

408.  To  Whoni  Deed  to  be  Made. 

409. When  Deed  Made  where  Right  of  Redemption  Exists. 

410.  When    Deed   Executed   where    no    Right    to    Redeem 

Exists. 

411.  Statute  Requiring  Deed  Made  within  a  Certain  Time. 

412.  If  Required  Confirmation  Must  be  First  Had. 

413.  -Execution    of    Deed   Compelled    if   Officer    Refuses    to 

Make    It. 

414.  When  Deed  Void  because  Deficient  in  Form  and  Substance 

—  General  Rule  as  to  Sufficiency  of  Deed. 

415.  Recitals  Sufficient  in  Deed  under  Execution. 

416.  Instances  of  Omission  or  Insufficient  Recitals. 

417.  Deeds  in  Probate  Proceedings. 

41S.  Recitals  as  Evidence  by  Statute. 

419.  ■ Sufficiency  of  Description  Essential. 

420.  Omission  or  Defective  Acknowledgment. 

421.  Title  Obtained  by   Purchaser  at   Execution   and   Judicial 

Sale  —  In   Judicial    Sale. 

422.  What  Title  Obtained  by  Deed  under  Execution  Sale. 

423.  Effect  of  Deed  by  Relation  —  Relates  Back  to  Inception 

of  the  Lien. 

424.  r  Sale   under   Several   Executions   when   One   or   More 

Void. 


MEANING  OF  CONFIRMATION. 

Is  the  Judicial  Sanction  of  the  Sale. 

§  379.  Confirmation  of  a  judicial  sale  is  the  judicial  sanc- 
tion or  approval  thereof  by  the  court.  The  sale  is  incom- 
plete until  confirmation  is  had,  and  when  made,  it  relates  hack 
to  the  time  of  sale,  and  cures  all  defects  and  irregularities  that 
may  have  happened  in  the  proceeding's  of  sale,  except  such 
radical  defect-  as  are  jurisdictional,  or  fraudulent  practices, 
mistakes,  surprise  or  the  like  for  which  equity  would  furnish 
relief  if  the  -ale  had  been  made  by  the  parties  in  interest  in- 
stead of  by  the  court,  which  arc  generally  not  susceptible  of 
being  cured  by  the  order  of  confirmation. 

1 1'  the  court  was  without  jurisdiction  in  the  rendition  of  the 
judgment  in  the  first  instance,  such  judgment  i-  obviously  an 
unqualified  nullity,  and  every  other  order  made  thereafter 
must  manifestly  be  of  no  greater  efficacy  than  the  judgment 


MEANING   OF   CONFIRMATION.  339 

itself;  consequently  jurisdictional  matters  arc  not  cured  by  the 
order  of  confirmation.  But  the  decree  or  order  of  continua- 
tion of  a  judicial  sale  is  final  and  conclusive  upon  all  such  mat- 
ters as  the  court  is  required  to  pass  upon,  and  determines  the 
rights  of  the  parties,  and  is  of  the  same  force  an.]  effect  as  any 
other  final  adjudication  by  a  court  of  competent  jurisdiction. 
(Allison  v.  Allison,  88  Va.  328—  L3  S.  E.  Rep.  549;  Kincaid  v.  Tutt. 
ESS  Ky.  392  --  11  S.  W.  Rep.  297;  Hank  v.  Ned.  53  Ark.  110  —  13  S.  W. 
Rep.  700;  Thomas  v.  Davidson,  76  Va.  338;  Keohler  v.  Ball,  2  Kan.  160 
—  83  Am.  Dec  451;  Williamson  v.  Berry,  8  How.  546;  (Jockey  v.  Cole, 
28  Md.  276  —  92  Am.  Dec.  684;  Watson  v.  Tromble,  33  Neb.  450  —  50 
X.  W.  Rep.  331;  Cole  v.  Shaw.  33  W.  Va.  299  —  10  S.  E.  Rep.  637; 
Taylor  v.  Cooper,  1  Leigh.  317  —  34  Am.  Dec.  737.) 

But  in  a  recent  case  in  Tennessee  it  was  held  that  the  con- 
tinuation of  a  judicial  sale  has  no  retroactive  effect,  so  as  to 
relate  to  the  date  of  sale  and  give  the  purchaser  the  inter- 
mediate rents  of  the  property  sold. 

(Pearson  v.  Gillenwaters,  99  Tenn.  446  —  42  S.  W.  Rep.  9.) 

What  Matters  are  Cured  by  Confirmation  and  What  Not. 

§  380.  Should  the  property  be  sold  under  a  decree  which  is 
void  because  the  court  was  without  jurisdiction  of  the  sub- 
ject-matter, such  a  sale  would  be  wholly  void,  and  hence  there 
is  no  subject-niattei'  upon  which  the  order  of  confirmation 
could  act,  and  it  would  not  give  the  least  validity  to  the  pro- 
ceedings. If  there  was  no  jurisdiction  to  order  the  sale, 
there  can  be  none  to  confirm  it,  and  if  confirmed  the  proceed- 
ing is  inoperative. 

(Rea  v.  McEachron,  13  Wend.  465  —  28  Am.  Dec.  471;  Townsend  v. 
Tallant,  33  Cat.  54  —  91  Am.  Dec.  617;  Pike  v.  Wassal,  94  U.  S.  74; 
Gaines  v.  New  Orleans,  6  Wall.  642;  Montgomery  v.  Samory,  99  U.  S. 
182;  Hawkins  v.  Hawkins,  28  hid.  70;  Thomas  v.  Davidson,  76  Va.  338; 
Shriver  v.  Lynn,  2  How.  4:;:  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.  609; 
Lamaster  v.  Keeler,  123  U.  S.  370  —  8  Sup.  Ct.  Rep.  197.) 

The  confirmation  can  add  nothing  to  the  authority  of  the 
officer  making  the  sale,  for  if  the  sale  was  without  authority 
the  ratification  of  it  will  be  considered  as  inadvertently  made 
by  the  court. 

(Willis  v.  Chandler,  2  Fed.  Rep.  273;  Willamett  Keal  Estate  Co.  v. 
Hendrix,  28  Ore.  485  —  42  Pac.  Rep.  514;  Smith  v.  Long,  12  Abb.  N.  C. 
113.) 


3-10  VOID    JUDICIAL    AND   EXECUTION    SALES. 

All  matters  which  might  have  been  called  up  for  adjudica- 
tion had  the  parties  interested  brought  them  to  the  attention 
of  the  court  by  way  of  objections  to  the  confirmation,  will  be 
conclusively  determined  by  the  order,  even  though  no  refer- 
ence was  had  to  them,  and  even  though  they  were  not  con- 
sidered directly;  and  this  whether  the  parties  were  or  were 
not  cognizant  of  the  existence  of  any  such  defects. 

(Speck  v.  Pullman,  121  111.  33  —  12  N.  E.  Rep.  213:  Willis  v.  Nichol- 
son, 24  La.  Ann.  545;  Clark  v.  Costello,  36  Atl.  Rep.  271;  McRea  v. 
Danner,  S  Ore.  63;  Dawson  v.  Litsey,  10  Bush,  408;  Wilcox  v.  Raben, 
24  Neb.  368  —  38  N.  W.  Rep.  844;  Hotchkiss  v.  Cutting.  14  Minn.  537; 
Brown  v.  Gilmore,  8  Aid.  322;  Thorn  v.  Ingraham,  25  Ark.  58;  Conover 
v.   Musgrove,   68   111.   58.) 

COKFIKMATION  ESSENTIAL  TO  TITLE. 

Sale  is  not  Complete  until  Confirmation. 

§  881.  Judicial  sales,  as  well  as  execution  sales  in  those 
states  where  confirmation  is  a  requirement  of  statute,  are  not 
valid  or  binding,  and  confer  no  rights  to  the  particular  prop- 
erty purchased,  unless  the  sale  is  confirmed  by  the  tribunal 
under  whose  judgment,  order  or  decree  the  sale  was  made. 
By  the  order  of  confirmation  the  sale,  ostensibly  made  by  the 
master,  commissioner,  sheriff  or  other  functionary  of  the  court 
appointed  or  commissioned  to  make  it,  is  judicially  made  the 
act  of  the  court  itself,  and  hence  is  a  judicial  sale,  or  sale  by 
the  court.  Therefore,  the  sale  and  deed  of  the  officer  making 
it,  notwithstanding  these  may  in  every  respect  be  legal  and 
in  pursuance  of  law,  pass  no  title  to  the  purchaser  without  the 
previous  order  of  confirmation  by  the  court.  It  is  one  of  the 
essential  steps  in  the  proceedings  of  sale  —  an  integral  part 
of  the  proceedings  under  the  process  or  judgment,  in  order  to 
perfect  the  sale  —  and  until  the  order  is  made  the  sale  is  not 
completed  to  the  extent  of  entitling  the  purchaser  to  a  con- 
veyance, or  vesting  in  him  any  right  or  title  to  the  land. 

(Maynard  v.  Cocke.  71  Miss.  4C3  — 18  So.  R«p.  374:  Lumpkins  v. 
Johnson,  61  Ark.  80  —  32  S.  W.  Rep.  65;  Chase  v.  Van  Metro.  140  End. 
321  —  39  N.  E.  Rep.  455;  Stotts  v.  Brookfiekl,  55  Ark.  307  —  18  8.  \V. 
Rep.  179;  Apel  v.  Kelsey.  47  Ark.  413  —  2  S.  W.  Rep.  102;  McBain  v. 
McBain.  1"  Ohio  St.  337;  Curtis  v.  Norton.  1  Ohio,  137;  Taylor  v. 
Cooper.  10  Leigh.  317  —  34  Am.  Dec.  737;  Reed  v.  Rodigan.  42  Ohio  St. 
292;  .Myers  v.  Lindsay,  5  Lea,  331,  Bassett  v.  Daniels,  10  Ohio  St.  617; 


CONFIRMATION    ESSENTIAL   TO   TITLE.  341 

Beese  v.  Copeland,  6  Lea,  190;  Click  v.  Buiri>.  (»  Ileisk.  539;  Greer  v. 
Anderson,  62  Ark.  213  —  :;.".  S.   \V.   Rep.  215.) 

After  Confirmation  Purchaser  is  the  Owner. 

§  382.  In  the  interim  after  purchase  and  before  confirma- 
tion the  purchaser  is  not  liable  for  any  loss  or  injury  that  may 
happen  to  the  estate,  and  for  proper  grounds  shown,  may  law- 
fully refuse  to  comply  with  the  terms  of  his  purcha.e; 

(Houston  v.  Ayeock,  5  Sneed,  406  —  73  Am.  Dec.  131;  Pearson  v. 
Johnson.   2   Sneed,    580.) 

so  that  if  the  property  increases  in  value  after  it  i^  hid  in 
and  before  confirmation  a  re-sale  may  be  ordered  unless  the 
purchaser  makes  compensation,  or  in  the  event  of  a  deprecia- 
tion in  value  a  deduction  will  be  allowed; 
(Click  v.  Burris,  6  Ileisk.  539.) 

but  after  confirmation  the  purchaser  is  the  owner  and  is  then 
liable  himself  to  any  loss  or  injury  that  the  estate  purchased 
may  sustain,  and  he  can  not  thereafter  evade  compliance  with 
the  terms  of  his  contract. 

(Brewer  v.  Herbert,  30  Md.  301  —  96  Am.  Dec.  5S2 :  Houston  v.  Ay- 
cock.  5  Sneed,  406  —  73  Am.  Dec.  131;  Wagner  v.  Cohen,  6  (Jill,  97  — 
46  Am.   Dec.   660.) 

If  the  court  had  no  jurisdiction  of  the  parties  of  the  subject- 
matter,  and  hence  no  authority  to  order  the  sale,  the  pur- 
chaser is  not  bound  by  the  order  of  confirmation,  and  he  can 
successfully  resist  the  enforcement  of  the  terms  of  his  pur- 
chase, because  the  confirming  order  did  not  cure  the  jurisdic- 
tional infirmity. 

(Boggs  v.  Hargrave,  16  Cal.  559  —  76  Am.  Dec.  561;  Stoney  v.  Schultz, 
1  Hill  Ch.  465  —  27  Am.  Dec.  420:  Thrift  v.  Fritz,  7  111.  App.  55; 
Matthews  v.  Eddy,  4  Ore.  255;  Dawley  v.  Brown.  65  Barb.  107;  Darvin 
v.  Halfleld,  t  Sandf.  468;  Boykin  v.  Cook,  61  Ala.  472;  Burns  v.  Led- 
better,  56  Tex.  282;  Short  v.  Porter,  44  Miss.  533;  Henry  v.  Keys,  :, 
Sucnl,  488;    Bartee  v.  Tompkins,  4  Sneed,  623.) 

Confirmation  is  therefore  a  necessity  in  a  judicial  sale,  and 
when  made  relates  back  '<>  the  <n\v  so  that  it  invests  the  pur- 
chaser with  everything  that  he  would  have  received  were  con- 
firmation and  conveyance  made  contemporaneously. 

(Deputron  v.  Young,  L34  U.  S.  241  —  10  Sup.  Ct.  Rep.  539;  Taylor  v. 
Cooper.  10  Leigh,  317  —  34  Am.  Dec.  737;  (ale  v.  Shaw.  33  \Y.  Va.  299 
—  10  S.  E.  Rep.  637.) 


342  VOID    JUDICIAL    AND    EXECUTION    SALES. 


CONFIRMATION  DISCRETIONARY. 

Is  in  Sound  Legal  Discretion  of  Court. 

§  383.  In  a  legal  or  judicial  sense  there  is  no  sale  until  after 
confirmation,  though  in  popular  phraseology  the  sale  occurs 
at  the  time  the  property  is  bid  in.  Before  the  approval  by 
the  court  it  is  a  sale  only  in  a  popular  sense.  The  court  lias 
a  Aery  broad  discretionary  power  in  confirming  or  disapprov- 
ing -ales  made  under  its  writs  or  orders.  Therefore,  the  judi- 
cial act  of  confirmation  is  a  matter  largely  resting  in  the  wise 
discretion  of  the  court,  and  in  its  exercise  the  chancellor  is 
actuated  by  prudence  and  a  consideration  of  fairness  toward 
all  of  the  parties  concerned  in  view  of  all  surrounding  facts 
and  circumstance-. 

There  is  no  absolute  legal  rule  to  guide  the  court  in  this 
regard,  and  the  exercise  of  judicial  power  in  this  regard  is 
that  of  a  sound  legal  discretion.  The  permutations  and  com- 
binations of  circumstances  that  confront  the  court  when  called 
upon  to  make  the  decree  of  confirmation  forbid  the  establish- 
ment of  an  inflexible  rule  to  be  invoked  in  making  it. 

(Can-  v.  Can-.  88  Va.  735—14  S.  E.  Rep.  368;  Alien  v.  Martin.  61 
Miss.  78;  Sowards  v.  Pritchett,  37  111.  517;  Taylor  v.  Cooper.  10  Leigh, 
377;  Henderson  v.  Herrod,  23  Miss.  434;  Brock  v.  Rice,  27  Gratt.  816; 
Daniel  v.  Leitch,    13  Gratt.   195.) 

And  the  discretion  used  in  the  confirmation  or  rejection  of  a 
judicial  sale  must  be  in  conformity  with  established  principles, 
and  not  a  mere  arbitrary  exercise  of  power. 

(Hughes  v.  Swope,  88  Ky.  254  —  1  S.  W.  Rep.  394:  Roberts  v.  Robin- 
son, 49  Neb.  717  —  68  N.  W.  Rep.  1035;  Ayers  v.  Baumgarten,  15  111. 
444.) 

Abuse  of  Discretion  Corrected  on  Appeal. 

§  384.  The  decree  or  order  of  confirmation  being  in  the 
nature  of  a  final  judgment  an  appeal  will  lie  therefrom  for 
an  abuse  of  the  discretion  of  the  court  in  making  it,  or  reject- 
ing the  sale,  where  the  statute  allows  an  appeal  to  be  taken 
from  ;i  final  order.  All  matters  properly  passed  upon  by  con- 
firmation, and  as  far  as  the  facts  appear  from  the  return  of  the 
officer,  it  is  a  judicial  decision  that  the  sale  is  properly  made, 
and  can  not  thereafter  be  assailed  in  a  collateral  proceeding. 


CONFIRMATION   DISCBETIONABY.  343 

•  Watson  v.  Tromble,  33  Neb.  450  —  50  N.  W.  Rep-  333;  Phillips  v 
Dawley,  1  Neb.  320;  Crowell  v.  Johnson,  2  Neb.  146;  Maul  v.  Bellman, 
3(1  Neb.' 322  — 58  N.  W.  Etep.  112;  Koehler  v.  Ball,  2  Kan.  160-  83  Am. 
Dec.  451;  Gregory  v.  Tingley,  18  Neb.  318  —  25  N.  W.   Rep.  88.) 

In  execution  sales  the  proceedings  occurring  after  judg- 
ment are  regulated  by,  and  the  confirmation  is  founded  upon 
the  statute,  and  the  entire  duty  of  the  court  in  making  the 
order  of  confirmation  in  all  ordinary  cases  is  to  ascertain 
whether  or  not  the  proceedings  of  the  sherifi  in  conducting  the 
sale  are  in  conformity  with  the  judgment  and  statute  require- 
ments, and  if  the  court  finds  the  acts  and  proceedings  in  all 
respects  substantially  regular,  then  in  the  absence  of  extrinsic 
circumstances  it  is  its  plain  duty  to  confirm  the  sale,  and  an 
arbitrary  refusal  to  confirm  in  such  case  is  an  abuse  of  dis- 
cretion which  may  be  corrected  by  the  appellate  court. 

(Cowdin  v.  CWin,  3d  Kan.  528-3  Pae.  Rep.  369;  Ihuu  v.  Peterson, 
40  Kan  245  —  19  Pae.  Pep  716:  Mortgage  Co.  v.  Smith.  2.,  Kan.  bM; 
Roberts  v.  Robinson,  40  Xeb.  717-68  N.  W.  Pep.  103o;  Dewey  v. 
Linseott,  20  Kan.  684.) 

In  the  exercise  of  judicial  power  in  the  confirmation  or 
revocation  of  sales  of  real  estate  under  execution  the  court 
does  not  proceed  according  to  the  rule,  and  forms  of  common 
law  in  pursuance  to  its  usual  and  general  inherent  jurisdic- 
tion, but  exerts  a  special  statutory  authority,  to  he  strictly 
pursued.  Confirmation  is  a  statutory  step  in  the  sale  and  the 
duty  of  the  court  extends  no  farther  in  all  ordinary  cases  than 
to  an  investigation  into  the  proceedings  of  the  sherifi  m  the 
conduct  of  th<  sale  under  the  writ.  *  ?onsequently,  upon  a_  mo- 
tion for  confirmation,  the  court  can  do  but  one  of  two  things, 
it  can  confirm  if  there  is  no  irregularity  brought  to  its  atten- 
tion, or  it  can  reject  for  existing  irregularities  of  sufficient 
gravity.  It  is  wholly  without  authority  to  exercise  its  dis- 
cretion in  the  modification  of  the  terms  of  sale,  or  to  declare 
some  other  person  the  highest  bidder. 

(Ham  v.  Peterson.  40  Kan.  245-19  Pae.  Pep.  716;  Reed  v.  Radigan, 
42  Ohio  St.  292;  Mortgage  Co.  v.  Smith,  25  Kan.  622;  Fiedeldey  V. 
Diserens,  2G  Ohio  St.  314;  Dewey  v.  Linseott,  20  Kan.  084.) 


344  YOID    JUDICIAL    AXD    EXECUTION    SALES. 


GENERAL  EFFECT  OF  CONFIRMATION. 

The  General  Scope  of  the  Order. 

§  385.  Confirmation  being  the  concluding  step  in  a  judicial 
sale  and  a  final  order,  the  validity  thereof  must  rest  upon 
similar  principles  of  law  as  are  applied  to  and  govern  other 
orders.  The  authorities  are  not  all  agreed  as  to  the  extent 
of  the  curative  effect  of  the  order  of  confirmation,  and  as  to 
how  far  it  reaches  antecedent  to  its  entry.  Thus  it  is  held 
that  it  cures  all  defects  in  the  notice  of  sale,  appraisement  and 
sale,  and  if  the  court  had  original  power  to  order  to  be  done 
what  was  done,  the  confirmation  is  effective. 

(Wilcox  v.  Raben,  24  Neb.  368  —  38  N.  W.  Rep.  844;  Smith  v.  Long, 
9  Daly,  429.) 

While  the  order  of  confirmation  cures  all  irregularities  in 
the  mode  of  making  the  sale,  it  nevertheless  can  add  nothing 
to  the  authority  of  the  officer  to  make  it,  and  the  ratification 
of  the  court  is  nugatory  for  having  been  given  inadvertently, 
if  the  sale  was  without  authority  in  the  first  instance,  as  the 
rule  that  when  courts  have  jurisdiction  of  a  cause  and  commit 
errors  their  judgments  are  nevertheless  finalities  if  not  ap- 
pealed from  has  no  application  to  such  matters. 

(Willis  v.  Chandler.  2  Fed.  Rep.  273;  Shriver  v.  Lynn,  2  How.  60; 
Embury  v.  Conner,  3  X'.  Y.  511;  Gue  v.  Jones.  25  Xeb.  634  —  41  X.  W. 
Rep.  555;  Burrell  v.  Railway  Co..  43  Minn.  363  —  45  N.  W.  Rep.  849;- 
Best  v.  Zutavern,  53  Neb.  619  —  74  N.  W.  Rep.  81.) 

A  decree  of  confirmation  of  a  tax  title  is  not  open  to  col- 
lateral  attack  upon  the  ground  that  the  land  was  not  adver- 
tised as  delinquent,  this  defect,  not  being  of  a  fundamental 
nature,  is  cured  thereby; 

(Caldwell  v.  Martin,  55  Ark.  470  —  18  S.  W.  Rep.  633.) 

and  all  collateral  inquiry  as  to  the  validity  of  a  tax  title  is  cut 
oft*  by  the  entry  of  the  order  of  confirmation  of  the  sale  upon 
which  the  title  is  based. 

(Boehm  v.  P.otsford,  52  Ark.  400  —  12  S.  W.  Rep.  786;  McCarter  v. 
Neil,  50  Ark.  188  —  7  S.  W.  Rep.  303;  Wallace  v.  Brown,  22  Ark.  118.) 

Effect  where  Jurisdiction  Had  Attached. 

§  386.  If  the  court  has  jurisdiction  over  the  subject-matter 
a  further  inquiry  is  precluded  and  nil  errors  and  irregularities 


GENERAL    EFFECT   OF   CONFIRMATION.  345 

are  cured  by  trio  confirmation,  in  so  far  as  they  mav  bs  there- 
after  questioned  in  a  collateral  proceeding;  until  reversed 
on  appeal,  or  revoked  for  fraud,  it  is  conclusive. 

(Allen  v.  Shanks,  90  Tenn.  259  —  16  S.  \V.  Rep.  715;  Andrews  v. 
Gofif,  15  R.  I.  205  —  21  Atl.  Rep.  347;  Emery  v.  Vroman,  L9  Wis.  689  — 
88  Am.  T)eo.  72r,:  Bland  v.  Muncaster,  24  Miss.  62  :>7  Am.  Dee.  162; 
Nolan*  v.  Barrett,  L22  Mo.  181  —  26  S.  W.  Rep.  692;  Linenwebber  v. 
Brown,  24  Ore.  548  —  34  Par.  Pep.  475:  Taylor  v.  Coats,  32  Neb.  30  —  48 
N~.  W.  Rep.  964;  Temples  v.  Cain,  60  Miss.  47s;  Fleming  v.  Johnson,  26 
Ark.  421;    Hanks   v.  Neal,   44    Miss.   212.) 

Confirmation  of  a  guardian's  sale  is  merely  an  adjudication 
that  the  proceedings  are  regular,  the  sale  fairly  conducted  and 
the  selling  price  an  adequate  one,  but  if  the  sale  was  void  on 
account  of  there  being  no  judgment  authorizing  it,  or  because 
for  any  reason  the  officer  or  person  making  itjhad  no  author- 
ity to  make  it,  confirmation  is  wholly  futile  and  can  not 
validate  the  sale. 

(Burrell  v.  Railway  Co.,  43  Minn.  363  —  45  N.  W.  Rep.  849;  Dawson 
V.  Helmes,  30  Minn.   107  —  14  N.  W.   Rep.  462.) 

So  where  proceedings  in  administration  for  the  sale  of  lands 
of  a  decedent  to  pay  debts  are  regarded  as  in  rem,  the  only 
question  of  jurisdiction  is  that  over  the  subject-matter,  with- 
out regard  to  the  heirs,  the  purchaser  under  such  sale  claims 
title  not  through  the  heirs  but  by  one  paramount,  and  it  passes 
to  him  by  operation  of  law.  Hence,  if  the  court  had  juris- 
diction of  the  land  the  order  of  confirmation  will  cure  all 
irregularities  happening  during  the  proceedings  of  sale. 

(McPherson  v.  Cunliff,  11  S.  &  R.  422  —  14  Am.  Dec.  642;  livers  v. 
Watson,  156  IT.  S.  527  —  15  Sup.  Ct.  Rep.  430;  Potts  v.  Wright,  86 
Pa.  St.  498;  Grignon  v.  Astor,  2  How.  319.) 

And  when  a  judicial  sale  lias  once  been  regularly  confirmed 
by  the  court,  it  will  not  be  sei  aside  except  for  fraud,  mistake, 
surprise,  or  other  equitable  cause. 

(Insurance  Co.  v.  Cot l nil.  85  Va.  857  —  9  S.  E.  Rep.  132;  Kara  v. 
Iron  Co.,   86  Va.   754—11   S.    E.    Rep.   431.) 

In  Sales  under  Execution. 

§  S87.  In  those  states  where  confirmation  of  ordinary  exe- 
cution =ale-  is  :1  requirement  of  statute,  the  sale  necessarily 
must  partake  of  the  nature  of  a  judicial  sale,  and  the  title  of 
the  purchaser  depend-   upon  the  confirmation  of  the  sale  by 


346  VOID    JUDICIAL    AXD    EXECUTIOX    SALES. 

the  court  under  whose  process  it  was  made,  and  until  this  is 
done  the  rights  of  the  execution  defendant  are  not  divested. 
After  the  order  of  confirmation  has  been  made  and  entered 
it  is  a  conclusive  adjudication  and  determination  of  the  regu- 
larity of  all  proceedings  concerning  the  sale  after  the  issuance 
of  the  writ  and  before  confirmation,  but  nothing  more.  It  is 
merely  an  adjudication  that  the  acts  of  the  officer  as  they  ap- 
pear of  record  were  regular,  and  a  direction  in  contemplation 
of  law,  that  at  the  proper  time  he  shall  complete  the  sale  by 
executing  a  deed.  Should,  however,  the  execution  be  fatally 
defective,  or  wholly  unauthorized,  or  should  it  be  void  by  con- 
troverting the  title  made  under  it,  or  the  levy  thereunder  be 
made  upon  property  owned  by  a  third  person,  such  wrongs 
not  being  apparent  in  the  proceedings  of  the  officer,  are  not 
cured  by,  nor  are  they  properly  passed  upon  by  the  confirma- 
tion, being  independent  of  and  in  no  way  affected  thereby. 

(Bank  v.  Huntoon,  35  Kan.  577  —  11  Pac.  Rep.  369;  Cross  v.  Knox. 
32  Kan.  725  —  5  Pac.  Pep.  32 ;  Dickens  v.  Crane.  33  Kan.  344  —  6  Pac. 
Rep.  630;  Koehler  v.  Ball,  2  Kan.  160  —  83  Am.  Dec.  451;  Neligh  v. 
Keene,  16  Neb.  407  —  20  N.  W.  Rep.  277;  Linenwebber  v.  Brown.  24 
Ore.  553  —  34  Pac.  Rep.  475 ;  McRea  v.  Daviner.  8  Ore.  63 ;  Deputron  v. 
Young.  134  U.  S.  241  —  10  Sup.  Ct.  Rep.  539;  Bank  v.  Green,  10  Neb. 
130  —  4  N.  W.  Rep.  942;  Yeazel  v.  White,  40  Neb.  432  —  58  N.  W.  Rep. 
1020.) 

The  purchaser  at  an  execution  sale,  where  these  are  by 
statute  required  to  be  reported  to  the  court  for  approval,  nev- 
ertheless acquires  the  equitable  title  upon  the  payment  of  the 
purchase  price,  if  the  proceedings  are  regular  up  to  the  time 
of  sale,  notwithstanding  the  sale  be  not  confirmed,  as  it  is 
held  that  it  is  not  the  confirmation  but  rather  the  payment  of 
the  purchase  money  according  to  the  terms  of  sale  that  gives 
the  equitable  title  to  the  property. 

(Morrow  v.  Moran,  5  Wash.   692  —  32  Pac.   Rep.  770.) 

Court  Adopts  Proceedings  of  Officer. 

§  .388.  By  the  confirmation  of  an  execution  sale  nothing 
is  reached  beyond  the  writ,  and  no  evidence  can  be  received 
other  than  such  as  relates  to  the  sheriff's  proceedings  as  shown 
by  his  return,  all  things  after  judgment,  including  confirma- 
tion, being  regulated  by  statute 

(Ham  v.  Peterson,  40  Kan.  245  —  19  Pac.  Rep.  716;  Bank  v.  Huntoon, 
35  Kan.  577  — 11  Pac.  Rep.  369;  Mortgage  Co.  v.  Smith,  25  Kan.  622; 


NOTICE   OF  APPLICATION  FOR  ORDER  OF  CONFIRMATION.       347 

Koebler  v.  Ball,  2  Kan.  L60  —  83  Am.  Dec.  451;  Challia  v.  Wise,  2  Kan. 
193;   Moore  v.  Pye,   10   Kan.  246.) 

Unlike  in  execution  sales,  in  judicial  sales  the  court  has  a 
wide  discretion  and  ample  power  to  rectify  various  errors  and 
irregularities  in  the  proceedings  by  the  confirming  order.  If 
the  master  or  other  functionary  has  evaded  the  strict  terms 
embodied  in  the  order  or  decree  of  sale  and  sold  upon  different 
terms,  it  is  optional  with  the  court  to  ratify  or  reject  the  sale 
for  that  reason.  The  court  has  power  to  approve  the  sale 
despite  the  officer's  evasion  if  the  terms  extended  by  the 
functionary  were  such  as  the  court  originally  might  have  in- 
corporated in  the  order,  and  after  confirmation,  in  contempla- 
tion of  law  such  conditions  are  of  similar  effect  as  if  imposed 
in  the  first  instance.  The  sale  being  by  the  court,  the  acts  of 
the  officer,  after  the  confirmation,  are  considered  its  own. 

(Noland  v.  Barrett.  122  Mo.  181-26  S.  W.  Rep.  692;  Richardson  v. 
Butler  82  Cal.  174  —  23  Pac.  Pep.  9;  Falls  v.  Wright.  55  Ark.  562  —  18 
S  W  Hep  1044:  Emery  v.  Vroraan,  19  Wis.  689  —  88  Am.  Dec.  726; 
Shnmard  v.  Phillips.  53  Ark.  37-13  S.  W.  Rep.  510;  Alexander  v. 
Hardin  54  Ark.  480  —  16  S.  W.  Pep.  264:  Jacobs'  Appeal.  2?,  Pa.  St. 
477:   Lancaster  v.  Wilson.  27  Gratt.  624;  Tutt  V.  Boyer,  51  Mo.  425.) 

NOTICE  OF  THE  APPLICATION  FOR  ORDER  OF 
CONFIRMATION. 

Where  Statute  Requires  Notice  to  be  Given. 

§  389.  Chancery  and  probate  sale-  are  required  to  he  re- 
ported hack  to  the  tribunal  from  which  the  decree  or  order 
of  sale  emanated,  and  are  required  to  receive  the  approval 
thereof  before  the  sale  is  consummated  in  a  legal  sense.  In 
all  but  a  few  of  the  states  general  execution  sales  are  not  re- 
quired to  be  confirmed  by  the  court  —  hut  in  the  rest  con- 
firmation is  a  requirement  of  statute,  and  the  sale  is  no  more 
complete  without  confirmation  than  are  sales  in  probate  or 
chancery.  The  order  of  confirmation  being  a  decree  final  in 
its  nature  and  an  adjudication  upon  important  rights,  in  sev- 
eral states  the  return  of  sale  must  be  verified  and  can  not  be 
brought  on  for  hearing  except  upon  due  notice  to  the  adverse 
party,  in  the  manner  prescribed  by  the  statute.  It  would 
seem  that  on  principle  and  reason  it  is  essential  to  pursue  these 
formalities  in  order  to  confer  validity  upon  the  order  of  con- 


348  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

firmation,  so  as  to  preclude  subsequent  collateral  inquiry  into 
the  proceedings  of  sale  ostensibly  passed  upon  by  the  con- 
firmation. 

(Dngger  v.  Tayloe,  60  Ala.  504;  Perkins  v.  Gridley,  50  Cal.  97;  Speck 
V.  Wholein,   22  Mo.  310.) 

But  if  the  sale  is  prematurely  confirmed  it  is  held  imper- 
vious upon  attack  in  a  collateral  action  of  ejectment  upon  the 
hypothesis  that  the  adjudication  of  a  court  of  general  juris- 
diction having  acquired  jurisdiction  of  the  cause  is  unim- 
peachable upon  collateral  inquiry. 

(Henry  v.  McKerlie,  78  Mo.  416;  Bobb  v.  Barnum,  59  Mo.  394;  Castle- 
man  v.  Relfe,  50  Mo.  583.) 

Effect  of  Confirmation  Entered  without  Notice. 

§  390.  Confirmation  entered  without  notice  manifestly 
lacks  the  essential  element  of  conclusiveness  of  the  questions 
necessarily  adjudicated  thereby  because  of  the  absence  of  the 
principle  in  all  adjudications  to  which  the  quality  of  conclu- 
siveness is  attributed,  due  notice  to  him  whose  rights  ar^ 
passed  upon.  Such  a  confirmation  is  not  conclusive  evidence 
tli  at  the  land  ordered  to  be  sold  by  the  decree,  or  levied  upon 
under  execution,  was  regularly  and  legally  sold,  so  as  to  bind 
all  parties  that  may  possibly  be  affected  thereby. 
(Rice  v.  Poynter,  15  Kan.  263;  Benz  v.  Hinos,  3  Kan.  390.) 

HO \V  COOTIKMATTON  SHO uX. 

Generally  Required  to  be  Shown  Affirmatively. 

§  391.  It  is  a  fundamental  proposition  that  a  judicial  sale 
passes  no  title  to  the  purchaser  until  the  sale  is  sanctioned  bv 
the  court  by  the  confirming  order,  and  it  is  therefore  held  that 
confirmation  is  a  matter  that  must  be  affirmatively  shown,  and 
will  not,  as  a  general  rule,  be  presumed.  The  burden  of  show- 
ing confirmation  is  consequently  on  him  who  asserts  title 
under  a  judicial  sale,  and  the  rule  that  applies  where  juris- 
diction appears  that  all  things  will  be  presumed  to  have  been 
rightly  dime,  unless  the  contrary  appears,  is  not  applicable  to 
confirmations,  for  the  import  of  that  rule  is  that  when  a  sub- 
stantial judgment  or  decree  is  shown  to  have  been  entered  it 
will  be  presumed  that  all  the  preliminary  -reps  necessary  have 
been  taken  to  make  such  judgmenl  or  decree,  after  the  ac- 


HOW   CONFIRMATION    SHOWN'.  )149 

quisition  of  jurisdiction,  but  this  presumption  will  not  be 
invoked  in  this  regard,  for  confirmation  is  itself  a  final  judg- 
ment and  hence  must  be  shown  to  have  been  made. 

(Apel  v.  Kelsey,  47  Ark.  413  —  2  S.  W.  Rep.  102;  Swenson  v.  Seale, 
28  S.  W.  Rep.  143:   Reid  v.  Hart.  -45  Ark.  41.) 

But  as  against  a  collateral  assault  it  may  be  shown  suffi- 
ciently by  the  minutes  of  the  judge,  it  being  sufficient  if  the 
approval  can  be  gathered  from  the  whole  record. 

(Camden  v.  Plain.  91  Mo.  117  —  4  S.  W.  Rep.  86;  State  v.  Jones,  89 
Mo.  470  —  1  S.  W.  Rep.  355;  Agen  v.  Shannon  103  Mo.  661  —  15  S.  W. 
Rep.  757;  Moore  v.  Davis,  85  Mo.  464;  Henry  v.  McKerlie,  7s  Mo.  416; 
Alsbrook  v.  Eggleston,  69  Miss.  S33  — 13  So.  Rep.  850;  Johnson  v. 
Cooper.  ,r)6  Miss.  60S.) 

When  Confirmation  Presumed. 

§  302.  Ratification  or  acquiescence  by  the  parties  in  in- 
terest is  sometimes  considered  tantamount  to  an  actual  con- 
firmation by  the  court.  The  lapse  of  time  together  with  the 
payment  of  the  purchase  money,  long  continued,  qniet  posses- 
sion of  the  property  under  the  purchase,  and  the  deed  all 
raise  the  presumption  that  the  sale  has  been  properly  re- 
ported to  the  court  and  by  it  confirmed,  and  proof  of  actual 
confirmation  is  sometimes  dispensed  with.  Such  acts  and  ac- 
quiescence amount  to  a  recognition  of  the  sale  as  valid  and 
work  an  estoppel  against  subsequent  attack  for  want  of  con- 
firmation, in  an  action  involving  the  possession  of  the  land. 
If  there  is  something  from  which  the  inference  of  confirma- 
tion can  be  drawn,  or  if  there  is  something  which  in  equity 
and  good  conscience  would  entitle  the  purchaser  to  a  con- 
firmation, he  will,  as  a  general  rule,  hold  the  land  upon  col- 
lateral assault,  despite  the  fact  that  there  is  no  decree  of 
confirmation  actually  made  and  of  record. 

(Moody  v.  Butler,  63  Tex.  210;  Simmons  v.  Blanchard,  46  Tex.  266; 
Neill  V.  Cody.  26  Tex.  289;  Smith  v.  Wert,  64  Ala.  34;  Watts  v.  Scott, 
3  Watts,  79;  Gowan  v.  Jones.  10  S.  &  M.  164;  Eenderaon  v.  Herrod,  23 
Miss.  434;  Tipton  v.  Powell.  2  Coldw.  19;  Moore  v.  Greene.  19  How.  69; 
Greer  v.  Anderson,  62  Ark.  213  —  35  S.  W.  Rep.  215;  Penn  v.  Heisey, 
19   111.   295;    Redus  v.   Harden.   43   Miss.  614.) 

Confirmation  by  Estoppel. 

§  393.  In  case  no  sufficient  time  has  elapsed  since  the  sale 
to  raise  the  presumption  of  confirmation  by  acquiescence,  and 


350  VOID    JUDICIAL    AXD    EXECUTION'    SALES. 

notwithstanding  the  fact  that  there  has  been  no  order  of  ap- 
proval made  or  entered,  the  sale  may  still  be  irrevocably  con- 
firmed as  to  one  or  the  other  of  the  interested  parties,  by  his 
acts  in  regard  thereto,  and  thereafter  the  sale  be  confirmed 
as  to  him  on  account  of  his  estoppel  from  asserting  any  of  its 
ingredients  of  legal  infirmity.  This  ratification  may  be 
brought  about  by  accepting  the  proceeds  of  a  judicial  or  exe- 
cution sale,  or  a  part  thereof,  by  the  judgment  debtor,  rea- 
lized from  a  sale  of  his  property,  for  by  so  doing  he  ratifies 
such  proceedings  and  sale,  and  makes  the  same  conclusive  as 
to  him.  He  admits  the  legality  of  the  proceedings  of  sale  and 
thereafter  is  estopped  from  impeaching  it.  The  acceptance  of 
the  whole  or  a  portion  of  the  proceeds  of  such  a  sale  is  an 
unconditional  waiver  of  all  defects  thereof  on  the  part  of  the 
debtor  who  thus  knowingly  receives  such  money,  and  this 
whether  the  sale  be  merely  voidable  or  altogether  void,  he 
can  not  thereafter  assert  the  invalidity  as  against  those  who 
have  acted  on  it  as  valid  and  in  good  faith. 

(Hazel  v.  Lyden.  51  Kan.  233  —  32  Pac.  Rep.  S98;  Palmerton  v. 
Hoop,  131  Ind.  23  —  30  N.  E.  Rep.  874;  Iron  Co.  v.  Fullenweider,  87 
Ala.  584  —  0  So.  Rep.  197 ;  Fallon  v.  Worthington,  13  Colo.  559  —  22 
Pac.  Rep.  960;  Ogden  v.  Dupuy,  99  Ala,  36  —  11  So.  Rep.  419;  Bumb 
v.  Gard,  107  Ind.  575  —  8  N.  E.  Rep.  713;  Southard  v.  Perry,  21  Iowa, 
4S8  — 89  Am.  Dec.  587;  Huffman  v.  Gaines,  47  Ark.  226  —  1  S.  W.  Rep. 
100;  Merritt  v.  Home,  5  Ohio  St.  307  —  67  Am.  Dec.  298;  Hartshorn  v. 
Portroff,  89  111.  509;  Hare  v.  Hall,  41  Ark.  372;  Maple  v.  Kusart,  53 
Pa.  St.  352  —  91  Am.  Dec.  214;  Stroble  v.  Smith.  8  Watts.  2S0;  Deford 
v.  Mercer,  24  Iowa,  118;  Robertson  v.  Bradford,  73  Ala.  116;  Test  v. 
Larch,  76  Ind.  452 ;  Herndon  v.  Moore,  18  S.  C.  339 ;  Kile  v.  Yellowhead, 
SO  111.  208;  Latimer  v.  Rogers,  3  Head,  692;  Mather  v.  Knox,  34  La. 
Ann.  410:  Goodman  v.  Winter,  64  Ala.  410;  Weist  v.  Grant,  71  Pa.  St. 
95;  Rowe  v.  Major,  92  Ind.  206;  Kindell  v.  Frazer,  9  Heisk.  727.) 

Confirmation  may  be  Annulled  but  not  Collaterally. 

§  394.  The  order  of  confirmation  being  in  the  nature  of  a 
final  order,  judgment  or  decree,  if  the  court  has  jurisdiction  of 
the  cause,  it  can  not  be  successfully  assailed  in  a  collateral  pro- 
ceeding, the  order  being  conclusive  when  questioned  in  this 
manner,  and  appeal  is  the  only  remedy. 

(Phillips  v.  Dawley,  1   Neb.  320:  Crowell   v.  Jolmson.  2  Neb.  146.) 

But  if  the  confirmation,  or  ratification  as  it  is  termed  in 
some  states,  is  made  or  obtained  through  mistake,  inadvert- 


WHAT   IEEEGULAEITIES   ABE   CUBED    BY    C0NFIBMATI0N.       351 

ence  or  fraud,  it  may  be  vacated  in  the  same  case  upon  timely 
application  for  such  relief. 

(Montgomery  v.  Williams,  37  Md.  121;  Krone  v.  Linville,  31  Md.  13S.) 

WHAT   IRREGULARITIES   ARE   CURED  BY   CON- 
FIRMATION. 

Appraisement  or  Inquisition  Wanting. 

8  395    The  curative  powers  of  the  order  of  confirmation 
in  judicial  and  execution  sales  extend  to  sales  which  are  void- 
able, rather  than  to  such  as  are  void;  and  hence    anything 
partaking  of  a  jurisdictional  nature  is  not  affected  thereby 
though  many  irregularities  with  which  the  sale  mav  be  beset 
are  cured  by  the  confirmation.      All  matters  properly  consid- 
ered   upon   the    confirmation    are    conclusively    adjudicated, 
and  can  thereafter  be  considered  only  upon  appeal    or  by 
direct  action  in  equity  upon  equitable  grounds.     Accordingly, 
where  an  appraisement  of  the  land  to  he  sold  is  required  by 
statute,  in  order  to  prevent  the  sacrifice  of  the  same,  and  that 
it  shall  not  be  sold  for  less  than  a  proportionate  amount  ot 
the  appraised  value,  if  such  appraisement  is  irregularly  made, 
or  is  entirely  wanting,  the  defect  is  cured  by  the  order  of  con- 
firmation properly  entered. 

(Watson  v.  Tremble,  33  Neb.  450-50  N.  W.  Rep.  881; ;  Wjlc« Jj 
Raben,  24  Neb.  368-33  N.  W.  Rep.  844;  Nel.gh  V.  Keene,  16  Neb.  407 
—  20   N.  W.   Rep.   277.) 

Defects  in  Notice  or  Want  of  Notice. 

§  396.  Confirmation  cures  a  defect  in  the  sheriff's  notice 
of  sale  caused  bv  reason  of  an  omission  to  publish  it  as  many 
'times  as  required  by  law;  and  as  a  general  rule  all  defects 
occurring  in  the  advertisement  of  the  sale  are  cured  by  the 

approval  thereof. 

(Wyant  v.  Tuthill,  17  Neb.  495-23  N.  W.  Rep.  342 -Jackson  v. 
McGruder,  51  Mo.  55;  Brubaker  v.  Jones,  23  Kan.  411;  Rounsaville  v. 
Hazen,  33  Kan.  71  —  5  Pac.  Rep.  422  ;  Pritchard  v.  Madren,  31  Kan.  71  — 
2  Pac.  Rep.  691.) 

And  even  the  entire  absence  of  notice  of  sale  is  an  irregu- 
larity which  is  cured  by  the  order  of  confirmation. 

(Montgomery  v.  Johnson,  31  Ark.  74;  Apel  v.  Kelsey,  47  Ark.  413  — 
2  S.  W.  Rep.  102.) 


352  V0LD   JUDICIAL    AND    EXECUTION    SALES. 

Sale  at  Wrong  Time  or  Place  or  Person. 

§  397.  "Where  a  sale  by  a  guardian  is  ordered  to  be  made  on 
a  certain  day,  but  the  advertisement  and  sale  was  made  on  an- 
other day,  it  is  not  without  power  and  consequently  not  void, 
and  if  confirmed  is  impervious  upon  collateral  assault,  no 
fraudulent  combinations  or  conspiracies  appearing. 

(Conover  v.   Musgrove,   6S   111.   58.) 

Or  if  the  sale  was  made  at  a  different  time  and  place  than 
prescribed  by  statute  it  is  an  irregularity  but  is  cured  if  con- 
firmed. 

(Brown  v.  Christie.  27  Tex.  73  —  84  Am.  Dec.  607;  Blodgett  v.  Hitt, 
29  Wis.  169;  Neal  v.  Bartheson,  65  Tex.  478;  Beidler  v.  Freidler,  44 
Ark.  411.) 

Notwithstanding  the  statutory  inhibition  that  no  adjourn- 
ment of  sale  shall  be  for  more  than  one  week,  a  sale  after  an 
adjournment  for  four  weeks  is  in  effect  a  sale  upon  the 
original  notice  and  is  sufficient  when  approved. 

(Gager  v.   Henry,    5   Sawyer,   237.) 

And  a  sale  prematurely  made  in  violation  of  statute  is  sus- 
tained when  properly  confirmed,  if  questioned  in  a  collateral 
way. 

(Cross  v.  Knox,  32  Kan.  725  —  5  Pac.  Rep.  32;  Lynch  v.  Kelly,  41 
Cal.  232.) 

That  the  sale  was  conducted  by  the  wrong  person  furnishes 
ground  for  objection  to  the  report,  but  after  the  approval  by 
the  court,  exceptions  for  this  reason  come  too  late,  as  the 
irregularity  is  cured  then. 

(Kirk  v.  Kirk,  137  N.  Y.  510  —  33  N.  E.  Rep.  552;  Eaton  v.  White, 
18  Wis.  543;  Woodhull  v.  Little,  102  N.  Y.  165  —  6  N.  E.  Rep.  266; 
Abbott  v.  Curran,  98  N.  Y.  665;  Harteneaux  v.  Eastman,  6  Wis.  410.) 

And  a  sale  by  one  of  two  administrators  upon  an  applica- 
tion therefor  made  by  both  is  sufficient  when  confirmed,  and 
the  deed  by  such  fiduciary  passes  the  title  to  the  property. 

(Osman  v.  Traphagan,  23  Mich.  80;  Vernor  v.  Coville,  54  Mich.  2S1  — 
20  N.  W.  Rep.  75;  Herrick  v.  Carpenter,  92  Mich.  440  —  52  N.  W.  Rep. 
747.) 

Departures  from  Order  or  Decree. 

§  398.  As  a  general  rule,  in  the  absence  of  fraud  or  com- 
bination, a  departure  by  a  master,   commissioner  or  other 


WHAT    [REEGULABITIES    ARE   CURED   BY   CONFIRMATION.       353 

functionary  from  the  terms  of  sale  indicated  in  the  decree  or 
order,  must  be  raised  by  way  of  objections  to  the  confirmation, 
or  else  it  will  be  waived,  [f  the  officer  changed  the  term-  of 
sale  it  may  be  ratified  by  the  courl  by  confirmation,  provided 
the  terms,  as  changed,  were  such  as  might  have  been  desig- 
nated by  the  court  in  the  first  instance. 

(Robertson  v.  Smith,  94  Va.  250  —  26  S.  E.  Rep.  5^9:  McGavock  v. 
Bell,  3  Coldw.  512;  Langyher  v.  Patterson,  77  Va.  470;  Emery  v.  Vro- 
man.  19  Wis.  689  —  88  Am.  Dec.  726;  Jacobs'  Appeal,  23  Pa.  St.  477: 
Thorn  v.  Ingram,  25  Ark.  58.) 

Or  that  the  property  was  sold  at  private  sale  when  the 
order  of  the  court  directed  a  public  one,  is  cured  by  confirma- 
tion, despite  the  departure  from  the  peremptory  mandate  of 
the  order; 

(Apel  v.  Kelsey.  52  Ark.  341  —  12  S.  W.  Rep.  703.) 

and  the  sale  of  too  much  land  for  an  amount  in  excess  of  that 
authorized  to  be  raised  by  the  order  of  sale, 
(Dawson  v.   Litsey,   10  Bush,   408.) 

as  veil  as  the  omission  to  verify  the  report  of  sale,  are  ratified 
by  the  order  of  confirmation. 

(Dennis  v.  Winter,  63  Cal.   16;   Sprogins  v.  Taylor,  4S  Ala,  520.) 

So  if  the  decree  of  sale  establishes  the  day  of  sale,  but  the 
mandates  thereof  are  disregarded  and  the  sale  had  upon  an- 
other day  it  is  irregular,  and  may  be  avoided  before  but  not 
after  confirmation. 

(Tompkins  v.  Tompkins,  39  S.  C.   537  —  18  S.  E.  Rep.  233.) 

Defective  Bond  or  Omission  to  Give  Bond. 

§  300.  While  an  order  of  confirmation  is  coram  noil  judice 
and  void  if  made  in  a  case  when1  the  court  was  without  juris- 
diction, yet  if  jurisdiction  was  acquired  the  order  confirming 
the  sale  will  be  upheld  in  the  protection  of  an  innocent  pur- 
chase, although  under  other  circumstances  it  would  be  con- 
sidered invalid  by  reason  of  a  deviation  from  statutory  re- 
quirements in  the  conduct  of  the  sale. 

(Cunningham  v.  Anderson,  107  Mo.  371  -  17  s.  W.  Rep.  972:  Mitchell 
v.  Bowen,  8  End.  197  —  65  Am.  Dec.  758;  Apel  r.  Kelsey,  47  Ark.  413  — 
2  S.  W.  Rep.  102;  Brown  v.  Christie;  27  Tex.  73  —  84  Am.  Dec.  607; 
May  v.  Logan  Co.,  30  Fed.  Rep.  250.) 

23 


354  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

Hence,  it  is  held  that  a  sale  is  not  void  as  against  an  in- 
nocent purchaser  because  of  a  failure  to  give  a  bond,  as 
this  is  not  considered  a  jurisdictional  step,  nor  is  a  defect  in 
the  original  bond,  nor  a  defect  in  the  additional  bond  fatal 
to  the  proceedings  of  sale,  these  being  all  irregularities  which 
are  cured  by  the  order  of  confirmation. 

(Hamiel  v.  Donnelly.  75  Iowa.  93  —  39  X.  W.  Rep.  210;  Davidson  v. 
Bates,  111  1ml.  391  —12  X.  E.  Hep.  687;  Howbert  v.  Heyle,  47  Kan.  58 
—  27  Pae.  Rep.  116;  Arrowsmith  v.  Gleason,  129  U  S.  86  —  9  Sup.  Ct. 
Rep.  237:  Kelly  v.  Morrell,  29  Fed.  Rep.  730;  Hamilton  v.  Winona 
Bridge  Co..  51  Minn.  97  —  52  X.  W.  Rep.   1079.) 

Other  Irregularities  Cured. 

§  400.  The  irregularity  of  an  alias  execution  improperly 
issued  can  not  be  inquired  into  after  the  confirmation  of  a 
sale  had  thereunder; 

(Dickens  v.  Crane.  33  Kan.  344  —  6  Pac.   Rep.   630.) 

and  upon  collateral  attack  the  order  of  confirmation  is  a  con- 
clusive adjudication  upon  the  question  of  inadequacy  of  price. 
(Daly  V.  Ely.  51  X.  J.  Eq.  104  —  26  Atl.  Rep.  263;  Parker  v.  Shannon, 
137  HI.  376  —  27  N.  E.  Rep.  525;  Berry  v.  Lovi,  107  111.  612;  Thomas 
v.   Hebenstreit,   68   111.   115;    Hamilton  v.    Quimby.    46   111.    90.) 

If  there  is  a  discrepancy  between  the  description  in  the  deed 
and  that  in  the  order  of  sale,  and  if  it  is  possible  to  construe 
the  description  of  the  property  sold  with  that  in  the  order, 
confirmation  cures  the  discrepancy. 

(Berry   v.   Young,   15  Tex.   369.) 

A  sale  in  equity  by  a  sheriff  without  a  renewal  of  the  order 
of  sale,  though  by  statute  this  is  required,  is  not  void,  as  the 
judgment  is  ample  authority  for  the  sale,  and  the  confirma- 
tion validates  the  sale  respecting  such  deviation  from  stat- 
utory requirement. 

(Hamer  v.  Cook,  lis  Mo.  476  —  24  S.  W.  Rep.  ISO.) 
The  substitution  of  another  as  the  highest  bidder  at  a 
probate  sale  will  not  invalidate  the  same,  if  such  person  is 
reported  to  the  court  as  the  purchaser,  and  the  sale  properly 
confirmed  to  such  substituted  person,  the  original  order  direct- 
ing the  sale  and  the  order  of  confirmation  giving  validity  to 

the  sale 

iKuing  v.  Eigby,  T  Ohio.  198  —  28  Am.  Dec.  633;  Halleek  v.  Guy. 
9  Cal.  181  —  70  Am.  Dec.  04::.) 


WHAT    IRREGULARITIES   ARK    CURED    BY   CONFIRMATION.       355 

Failing  to  sell  the  land  in  parcels  as  by  law  required  is 
cured  if  the  sale  is  subsequently  confirmed  by  the  courl 

(McCampbell  v.  Durst.  73  Tex.  5  —  13  S.  W.  Rep.  L87;  Smith  v. 
Scholtz,  68  X.  Y.  41;  Emery  v.  Vroman,  19  Wis.  089  —  SS  Am.  Dec.  726.) 

Sales  without  Notice  or  Order. 

§  401.  Where  probate  sales  of  lands  of  a  decedent  are  con- 
sidered adversary  proceedings,  notice  of  the  application  for  an 
order  of  sale  is  a  jurisdictional  requirement,  and  if  this  is 
wanting  the  sale  will  be  void,  the  invalidity  being  one  which 
the  order  of  confirmation  does  not  reach. 

(Dorrance  v.  Raynsford,  67  Conn.  1  —  34  Atl.  Rep.  706;  Clark  v. 
Thompson,  47  111.  25  —  95  Am.  Dec.  457;  Fell  v.  Young,  63  III.  106; 
Botsford  v.   O'Conner,  57   111.   72.) 

So  a  sale  of  a  tract  of  land  by  an  administrator  or  guardian 
without  the  previous  order  from  the  court  directing  such  sale 
is  utterly  void,  and  confirmation  can  give  it  no  validity,  as  the 
order  of  sale  is  in  fact  the  judgment  upon  which  the  sale  must 
rest,  which  the  confirmation  can  not  supply. 

(Collins  V.  Ball,  S2  Tex.  259  —  17  S.  W.  Rep.  614;  Melton  v.  Fitch, 
125  Mo.  281  —  28  8.  W.  Rep.  612;  Green  v.  Holt.  76  Mo.  677;  Ex  parte 
Kirkman,  3  Head,  517;  Evans  v.  Ball,  64  Mo.  516;  Huberman  v.  Evans, 
46  Neb.  784  —  65  N.  W.  Rep.  1045;  Walbridge  v.  Day,  31  111.  379  —  83 
Am.  Dec.  227;   Evans  v.  Snyder,  64  Mo.  516.) 

Defects  Considered  Incurable  by  Confirmation. 

§  402.  In  Iowa  and  Mississippi  it  is  held  that  a  private 
sale  of  property,  whether  real  or  personal,  by  an  administra- 
tor, is  void  and  may  be  collaterally  assailed  by  the  heirs,  and 
being  a  nullity  it  can  not  be  validated  by  confirmation. 

(Van  Horn  v.*Ford,  16  Iowa,  578;  Varten  v.  Howard.  2  S.  &  M.  527  — 
41  Am.  Dec.  607.) 

And  in  Missouri  the  provision  of  law  regarding  appraise- 
ment in  sales  by  guardians  and  administrators  is  held  manda- 
tory, and  a  sale  below  the  minimum  provided  for  by  statute  is 
void  and  can  not  be  cured  by  the  confirmation. 

(Carder  v.   Culbertson,   100  Mo.   269  —  13   S.  W.   Rep.   88.) 

Nor  will  the  order  of  confirmation  of  a  sale  made  by  one 
not  authorized  to  make  it,  cure  the  defect  and  make  the  sale 
valid,  the  sale  is  nevertheless  void  collaterally. 

(Stafford  v.  Harris,  82  Tex.  17S  —  17  S.  W.  Rep.  530;  Fryor  v.  Downey, 
50  Cal.  388  —  19  Am.  Rep.  656.) 


356  VOID   JUDICIAL    AND    EXECUTION    SALES. 

Under  statutes  providing  that  when  certain  things  appear 
to  have  been  clone  in  sales  by  administrators,  executors  and 
guardians,  among  them  being  notice  of  sale,  oath  and  bond, 
the  sale  shall  not  be  avoided  by  the  heir  or  ward,  it  is  held 
that  these  are  adversary  proceedings  and  if  omitted  the  sale  • 
will  be  void  when  questioned  in  a  collateral  proceeding,  con- 
firmation will  not  cure  the  omission. 

(Weld  v.  Johnson  Mfg.  Co.,  84  Wis.  537  —  54  N.  W.  Rep.  335;  Wil- 
liams v.  Reed,  5  Tick.  480;  Williams  v.  Morton,  38  Me.  47  —  61  Am. 
Dec.  229;  Tracy  v.  Roberts,  88  Me.  310  —  34  Atl.  Rep.  6S;  Montour  v. 
Purdy,  11  Minn.  384—88  Am.  Dec.  88;  Huberman  v.  Evans,  46  Neb. 
784  —  65  N.  W.  Rep.  1045;  Hartley  v.  Corze,  38  Minn.  325  —  51  N.  W. 
Rep.  915;  Ryder  v.  Flanders,  30  Mich.  336;  Walker  v.  Goldsmith,  14 
Ore.  125  — 12  Pac.  Rep.  537;  Bachelor  v.  Korb,  78  N.  W.  Rep.  4s5.'> 

If  the  sale  is  environed  with  fraud  or  fraudulent  con- 
trivances of  the  purchaser,  or  he  may  have  actual  or  presumed 
notice  of  such  fraud  practiced  by  others,  and  the  record  fails 
to  suggest  the  same  when  the  sale  is  brought  on  for  confirma- 
tion, such  infirmity  is  not  passed  upon  nor  cured  by  the  order 
of  confirmation,  and  accordingly  remains  open  to  be  subse- 
quently questioned  in  some  appropriate  proceeding. 

(Jackson  v.  Ludeling,  21  Wall.  633;  Bank  v.  Walden,  1  La.  Ann.  46.) 


DEED  ESSENTIAL  TO  THE  TRANSFER  OF  LEGAL 

TITLE. 

In  Judicial  and  Probate  Sales. 

§  403.  In  strict  judicial  and  probate  sales  a  deed  from 
the  proper  officer  is  essential  to  pass  the  legal  title  of  the 
property  to  the  purchaser.  Confirmation  is  an  indispensable 
step  in  the  proceedings  of  sale,  and  in  popular  phraseology 
the  sale  is  then  completed,  but  still  the  title  is  not  yet  trans- 
ferred to  the  purchaser  so  as  to  invest  him  with  the  muni- 
ments thereof  which  are  necessary  to  enable  him  to  substan- 
tiate his  claim  to  the  property.  Until  he  has  received  a 
proper  conveyance  it  has  been  held  that  he  can  not  success- 
fully maintain  ejectment  for  the  possession  thereof,  for  an 
heir  or  his  vendee  may  maintain  ejectment  against  the  pur- 
chaser, even  though  he  has  paid  his  money,  has  gone  into 
possession,  and  his  purchase  has  been  indorsed  by  the  court. 


DEED  ESSENTIAL  TO  THE  TEANSFEB   OF   LEGAL  TITLE.       357 

(Greenough  v.  Small.  i::7  Pa.  St.  132  — SO  Atl.  Rep.  396;  Strange  v. 
Austin.  134  Pa.  St.  96  —  19  Atl.   Rep.  492;   Leshey  v.  Gardner,  3  W.  & 

S.  314  —  38  Am.  Dec.  764.) 

Hence,  until  the  deed  is  executed  and  delivered,  in  a  legal 
sense,  no  title  to  the  property  has  passed  to  the  purchaser, 

(Leshey  v.  Gardner.  3  W.  &  S.  314  —  38  Am.  Dec.  764;  Williamson 
V.  Berry,  8  How.  496;  Childress  v.  Hurt,  2  Swan.  487;  Rawlings  v.  Bailey, 
15  111.  ITS;  Blossom  v.  Railway  Co.,  3  Wall.  207;  Goss  v.  Meadors,  7s 
Ind.  528.) 

In  Execution  Sales. 

§  404.  "While  at  an  execution  sale  the  purchaser  is  vested 
with  the  equitable  title  on  compliance  with  the  terms  of  his 
bid  and  confirmation,  his  rights  to  the  title  are  still  con- 
ditional, but  may  become  absolute  by  the  lapse  of  the  period 
of  redemption,  or  may  be  defeated  by  the  exercise  of  the 
right  of  redemption  by  the  judgment  creditor,  yet  the  legal 
title  is  still  vested  in  the  judgment  debtor  until  it  is  passed 
to  the  equitable  owner  by  the  execution  and  delivery  at  the 
proper  time,  of  the  sheriff's  deed.  Until  then,  in  the  absence 
of  statute  expressly  authorizing  it,  the  purchaser  or  his  succes- 
sor in  interest,  is  not  entitled  to  the  possession  of  the  premises. 

(Morrow  v.  Moran,  5  Wash.  692  —  32  Pac.  Rep.  770;  Lamb  v.  Sher- 
man, 19  Neb.  681  —  28  N.  W.  Rep.  319;  Yeazel  v.  White,  40  Neb.  432  — 
58  N.  W.  Rep.  1020 ;  Jewett  v.  Tomlinson,  137  Ind.  326  —  36  N.  E.  Rep. 
1106;  Ross  v.  Donaldson,  123  Ind.  238  —  24  N.  E.  Rep.  109;  Hayes  v. 
Mining  Co..  2  Colo.  273;  Robinson  v.  Hall,  33  Kan.  139  —  5  Pac.  Rep. 
763;  Cantwell  v.  McPherson,  34  Pac.  Rep.  1095;  Goss  v.  Meadors.  78 
Ind.    528.) 

The  certificate  of  purchase  is  evidence  of  a  lien  upon  the 
property  somewhat  higher  in  its  nature  than  the  antecedent 
judgment  lien,  but  it  is  nevertheless  nothing  but  a  lien  which 
does  not  vest  a  legal  estate  or  title  in  the  purchaser,  and  is  a 
right  yet  resting  on  the  judgment  and  owing  its  efficacy  to  it; 

(Robertson  v.  McCleave,  129  Ind.  217  —  26  N.  E.  Rep.  S99;  Shirk  v. 
Thomas,  121  Ind.  147  —  22  N.  E.  Rep.  976;  Leger  v.  Doyle,  11  Rich.  109 
—  70  Am.  Dec.  240;  Jewett  v.  Tomlinson.  137  Ind.  326  —  36  N.  E.  Rep. 
1106;  Rogers  v.  Cawood,  1  Swan,  142  —  55  Am.  Dec.  729;  Curtis  v. 
Millard,  14  Iowa,  12S  —  81  Am.  Dec.  160;  Robinson  v.  Garth,  6  Ala. 
204  —  41  Am.  Deo.  47;  Strain  v.  Murphy,  49  Mo.  337;  Anthony  v.  Wea- 
sel, 9  Cal.  103;   Duprey  v.  Moran,  4  Cal.  196.) 

nor  will  the  debtor's  estate  become  vested  in  the  purchaser 
by  the  mere  lapse  of  the  time  of  redemption,  but  only  by  the 


358  VOID    JUDICIAL    AND    EXECUTION    SALES. 

proper  deed  of  conveyance  pursuant  to  the  statute,  where- 
upon the  purchaser  becomes  the  owner. 

(Smith  v.  Colvin,  17  Barb.  157;  Vaughn  v.  Ely,  4  Barb.  159;  Ever- 
ingham  v.  Barden,  58  Iowa,  133—12  N.  W.  Rep.  142;  Rogers  v.  Ca- 
wood,  1  Swan,  142  —  55  Am.  Dee.  729 ;  Leger  v.  Doyle,  11  Rich.  109  — 
70  Am.  Dec.  240;  Curtis  v.  Millard.  14  Iowa,  G07  —  81  Am.  Dec.  460.) 

In  Several  States  Deed  net  Essential. 

§  405.  The  rule  that  the  legal  title  in  execution  sales  does 
not  pass  to  the  purchaser  until  the  execution  and  delivery  of 
the  deed  does  not  obtain  in  several  of  the  states,  where  it  is 
held  that  if  the  proceeding's  and  judgment  are  regular,  a 
party  claiming  under  the  execution  as  purchaser  is  not  re- 
quired to  show  a  deed  to  substantiate  his  claim  of  ownership 
of  the  land,  but  that  the  title  of  the  purchaser  depends  upon 
the  valid  judgment,  levy  and  execution,  and  the  payment  of 
the  purchase  money,  the  legal  estate  being  transferred  under 
the  execution  by  operation  of  law. 

(Lop. n  v.  Pierce.  66  Tex.  120  —  18  S.  W.  Rep.  343;  Pasley  v.  Mc- 
Connell,  38  La.  Ann.  470;  Leland  v.  Wilson,  34  Tex.  79;  Fleming  v. 
Powell,  2  Tex.  225;  Boring  v.  Lemmon,  5  II.  &  J.  22:; :  Remington  v. 
Linthicum,  14  Pet.  84;  Jouet  v.  Mortimer.  29  La.  Ann.  206;  Donnebaum 
V.  Tinsley,   54  Tex.   362.) 

WHEN,  BY  WHOM  AND  TO  WHOM,  DEED  TO  BE 

MADE. 

By  Whom  Deed  Executed  in  Execution  Sales. 

§  406.  In  sales  under  execution  the  deed  must  be  made 
by  the  sheriff,  or  by  his  general  deputy.  It  is  immaterial 
which  one  executes  the  instrument,  but  in  any  event  it  must 
be  made  in  the  name  of  the  sheriff,  and  purport  to  be  his  act, 
and  not  the  act  of  the  deputy,  unless  there  is  express  pro- 
vision of  •statute  authorizing  it;  the  execution  of  the  convey- 
ance being  but  a  ministerial  act,  the  power  to  perform  it  may 
be  thus  delegated  t<>  the  deputy. 

(Gibson  v.  Bank,  98  N.  Y.  87;  Jordan  v.  Terry,  33  Tex.  680;  Mc- 
Allister v.  Lynch.  68  N.  Y.  473;  Arnold  v.  Scott,  39  Tex.  368;  Jackson 
V.  Davis.  18  Johns.  7;  Oorham  v.  Gale,  7  Cow.  739  —  17  Am.  Dec.  549; 
Young  v.  Smith,  10  B.  Mon.  293:  Can  v.  Hunt.  14  [owa,  206;  Haines 
v.  Lindsey,  4  Ohio,  88;  Kellar  v.  Blanchard,  :.'l  La.  Ann.  3S;  Robinson 
v.  Hall,  33  Kan.  139  —  5  Pac.  Hep.  763;  Rowley  v.  Howard,  23  Cal.  401; 
Anderson  v.   Brown,   9  Ohio,   151.) 


WHEN,  BY  WHOM   AND  TO  WHOM,   DEED  TO  BE  MADE.       359 

In  the  absence  of  statutory  provision  to  the  contrary,  a  deed 
may  be  made  by  a  deputy  after  the  expiration  of  the  term  of 
office  of  his  principal,  even  if  the  sheriff  himself  did  make 
the  sale,  and  at  the  time  of  the  execution  of  the  deed  by  the 
deputy  he  is  out  of  the  state; 

(McAllister  v.  Lynch,  68  N.  Y.  473;  Lofland  v.  Ewing,  5  Lilt.  42  — 
15  Am.  Dec.  -41:  Tyree  v.  Wilson.  9  Gratt.  59  —  58  Am.  Dec.  213;  Tuttle 
v.  Jackson,  6  Wend.  213;  Gorham  v.  Gale,  7  Cow.  739  —  17  Am.  Dec. 
549;  Robinson  v.  Hall,  33  Kan.  139  —  5  Pac.  Rep.  703;  Mills  v.  Tukey, 
22  Cal.   373—83   Am.   Dec.   74.) 

though  it  is  held  in  an  early  case  in  Ohio  that  the  execution  of 
a  deed  by  the  deputy  after  the  death  of  the  sheriff  is  void,  the 
power  of  the  deputy  terminating  with  the  death  of  the  prin- 
cipal. 

(Anderson  v.  Brown.  9  Ohio,  151. 

In  the  absence  of  statute  permitting  it,  if  the  deputy  exe- 
cutes the  deed  of  conveyance  in  his  own  name  the  instrument 
is  void  according  to  the  uniform  declarations  of  judicial  de- 
cisions. 

(Evans  V.  Wilder,  7  Mo.  359;  Anderson  v.  Drown,  9  Ohio.  151;  Lewes 
V.  Thompson,  3  Cal.  266;  Samuels  v.  Shelton,  48  Mo.  444:  Eyerman  v. 
Payne.  28  Mo.  App.   72.) 

The  authority  to  sell  conferred  by  the  execution  in  the 
hands  of  the  officer,  as  a  necessary  inference,  also  confers  upon 
him  the  authority  to  execute  all  instruments  required  by  law 
to  the  complete  consummation  of  the  sale,  the  certificate  of 
purchase  and  the  deed  of  conveyance,  in  the  event  there  is 
no  redemption,  where  redemption  i^  provided  by  statute.  At 
common  law  the  sheriff  who  conducted  the  sale,  or  his  general 
deputy,  must  execute  the  deed  to  land  sold  by  him  while  in 
office',  though  his  term  of  office  has  expired  and  another  in- 
cumbent substituted  in  his  place.  This  is  also  the  rule  in 
many  of  the  states. 

(Robinson  v.  Hall.  33  Kan.  373  —  5  Pac.  Rep.  763;  Tuttle  v.  .Tackson, 
6  Wend.  213;  Lemon  v.  Craddock,  Litt.  S.  C.  251  —  12  Am.  Dec.  301; 
Allen  v.  Trimble.  4  Bibb,  21  —  7  Am.  Dec.  726;  Porter  v.  Mariner,  50 
Mo.  364;  Gibbs  v.  Mitchell,  2  Bay,  120;  People  v.  Boring.  8  Cal.  406  — 
68  Am.  Dec.  331.) 

However,  in  some  states  the  new  incumbent  is  the  only 
officer  who  is  authorized  to  execute  the  convevance  in  case  the 


360  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

term  of  office  of  the  sheriff  making  the  sale  shall  have  expired 
before  a  sufficient  deed  has  been  made. 

(Faull  v.  Cooke,  19  Ore.  455  —  26  Pac.  Rep.  662;  Conger  v.  Converse, 
9  Iowa.  554:  Moore  v.  Lock  Co.,  7  Ore.  359;  Fretwell  v.  Morrow,  7  Ga. 
264;  Fowble  v.  Rayberg,  4  Ohio,  45.) 

And  in  other  states  the  new  sheriff  is  empowered  by  statute 
under  certain  contingencies,  such  as  the  death  or  other  dis- 
ability of  the  old  officer,  to  execute  the  deed,  in  which  case 
the  power  to  execute  is  strictly  limited  to  the  contingencies 
prescribed  bj  law,  and  if  made  in  their  absence  the  deed  is 
a  nullitv  and  will  not  transfer  the  legal  title  to  the  grantee. 

(Worthen  v.  Cherry.  3  Head.  468;  Edwards  v.  Tipton,  77  N.  C.  222; 
Thornton  v.  Boyd.  25  Miss.  598.) 

And  should  it  so  happen  that  at  the  time  when  the  certifi- 
cate of  purchase  i?  returned  and  deed  demanded,  there  is  no 
one  in  existence  who  is  invested  with  authority  to  make  the 
conveyance,  the  holder  of  the  certificate  may  apply  to  the 
court  for  the  appointment  of  a  commissioner  to  execute  the 
deed; 

(Sickles  v.  Hogeboom.  10  Wend.  562;  People  v.  Boring,  8  Cal.  406  — 
68  Am.   Dec.   331.) 

or  the  purchaser  may  resort  to  a  suit  in  equity  for  the  purpose 
of  having  the  title  declared  divested  by  virtue  of  the  sale. 

(Stewart  v.  Stoker.  33  Ala.  494  —  73  Am.  Dec.  429.) 

A  deed  which  is  made  and  signed  by  one  sheriff  and  ac- 
knowledged by  another,  his  successor  in  office,  is  absolutely 
void. 

(Woods  v.  Lane,  2  S.  &   R.   53.) 

By  Whom  Deed  Made  in  Chancery  and  Probate  Sales. 

LOY.  In  Michigan  and  Missouri  it  is  held  that  if  the 
sale  and  conveyance  be  made  by  one  only  of  two  administra- 
tors, it  is  good  if  otherwise  regular,  upon  the  principle  that 
the  sale  is  attached  to  the  office  and  not  to  the  person,  and 
thai  each  of  the  fiduciaries  is  clothed  with  the  full  powers  of 
the  office. 

(Osman  v.  Traphagen,  23  Mich.  SO;  Valle  v.  Fleming.  19  Mo.  454  — 
61  Am.  Dec.  566.) 

Tn  sales  of  lands  of  a  decedent  by  administrators  the  deed 
rnusl    be  made  by  the   fiduciary   himself,   as  the  power  to 


WHEN',  BY  WHOM    AND  TO   WHOM,    DEED  TO    BE   M  VDE.       361 

execute  the  conveyance  can  not  be  delegated  by  him  to  an- 
other, and  is  an  act  that  can  only  be  performed  by  the  ad- 
ministrator himself,  who  can  be  compelled  to  execute1  the  deed 
if  he  be  within  the  jurisdictional  limits  of  the  court. 
(Gridley  v.   Phillips,  5   Kan.  349.) 

A  deed  executed  as  administrator  when  in  fact  the  officer 
was  the  executor  is  good  as  the  error  is  one  of  description  of 
the  person  only,  which  can  not  invalidate  the  instrument; 

(Norman  v.  Olney,  <il   .Mich.  55:;  —  ;n  N.  W.  Rep.  555.) 

and  on  the  same  principle,  where  a  commissioner's  deed,  made 
after  confirmation  in  a  judicial  sale,  recites  the  facts  and  pur- 
ports to  convey  by  virtue  of  the  judicial  proceedings,  the  fact 
that  he  added  no  designation  to  his  name  indicating  that  he 
acted  in  the  capacity  of  commissioner,  will  not  impair  the 
validity  of  the  deed,  as  the  deed  construed  with  the  whole 
record  shows  affirmatively  that  he  acted  in  an  official  capacity. 

(Exum  v.  Baker.  118  N.  C.  545  —  24  S.  E.  Rep.  351.) 

In  Mississippi  it  is  held  that  an  administrator  de  bonis  non 
has  only  the  power  to  administer  upon  the  unfinished  estate  as 
left  by  his  predecessor,  but  that  this  did  not  include  the  power 
to  make  a  deed  to  land  sold  by  the  formei  official,  in  the 
absence  of  express  provision  therefor. 

(Davis  r.  Brandon,   1   How.   154.) 

To  whom  Deed  to  be  Made. 

§  408.  It  is  well  settled  that  a  deed  under  execution  made 
by  a  sheriff  to  one  not  entitled  thereto  is  unqualifiedly  void 
and  passes  no  title  or  interest  in  the  property  to  the  grantee 
therein,  j^o  one  other  than  the  original  purchaser  at  the  sale, 
or  the  individual  to  whom  lie  may  have  assigned  the  certifi- 
cate of  purchase,  and  who  thus  has  become  his  successor  in 
interest,  or  a  redemptioner  under  a  junior  judgment  under 
provision  of  statute,  is  entitled  to  receive  the  conveyance. 
TTpon  the  assignment  of  the  certificate  of  purchase  the  as- 
signee becomes  possessed  of  his  assignor's  rights  under  the 
doctrine  of  subrogation,  and  in  legal  effect  is  the  purchaser. 

(Carpenter  v.  Shorty,  71  111.  4°7:  Blount  v.  Davis.  2  Dev.  L.  10:  In  re 
Smith,  4  Nev.  254:  MeClure  v.  Engelhart,  17  III.  47;  Small  v.  Hodgen, 
1  Litt.  16;  Frizzle  v.  Wad..  1  Dana,  211;  Smith  v.  Kelly,  3  Mm  ph.  507; 
Turner  v.  Bank,  78   I  ml.   19.) 


363  VOID   JUDICIAL    AND    EXECUTION"    SALES. 

If  the  purchaser's  right  to  a  deed  has  matured  at  the  time 
of  his  death,  the  deed  executed  to  him  thereafter  will  be  suffi- 
cient as  to  those  claiming  under  the  decedent. 

(Diamond  V.  Turner,  11  Wash.  189  —  39  Pac.  Rep.  379.) 

And  so  a  deed  made  by  the  sheriff  to  one  of  several  joint 
purchasers  has  been  held  invalid, 
(Rice  v.  Smith,   18  X.  H.  369.) 

while  a  conveyance  to  the  administrator,  of  land  to  which  the 
decedent  was  entitled, 

(In  re  Smith,  4  Nev,   254  —  97  Am.  Dee.   531.) 

or  a  conveyance  to  the  devisee  of  the  purchaser, 

(Sumner  v.  Palmer,  10  Rich.  L.  38;  McElmurry  v.  Ardis,  3  Strobh. 
212.) 

or  to  his  legal  heirs  without  naming  them, 

(In  re  Gnnzler.  70  Mo.  39;  Boone  v.  Moore,  14  Mo.  420;  Swink  v. 
Thompson.   31   Mo.   336.) 

passes  the  legal  title  to  the  grantees. 

The  right  to  assign  the  certificate  of  purchase,  and  the 
issuance  of  the  deed  to  the  assignee  thereof  in  the  absence  of 
statute  permitting  it,  is  generally  conceded,  and  is  a  neces- 
sary incident  to  the  full  enjoyment  of  the  right  of  property. 

(Messerschmidt  v.  Baker.  22  Minn.  81;  Matthews  v.  Clifton.  13  S.  & 
M.  330;  Green  v.  (lurk,  31  Cal.  591;  Splahn  v.  Gillespie,  48  Ind.  397; 
(  onger  v.  Babcock,  S4  Ind.  497;  In  re  Smith.  4  Nev.  254  —  97  Am.  Dec. 
531;  Brooks  v.  Ratcliff,  11  Ired.  L.  321;  Brisbane  v.  McCrary,  1  Nott 
&  McC.  62;  Ewing  v.  Higby,  7  Ohio,  178;  Turner  v.  Bank.  7s  Ind.    L9.) 

But  when  the  deed  is  made  to  the  assignee  of  the  original 
purchaser,  or  to  the  devisee  or  heirs,  it  should  contain  a  recital 
of  the  assignment,  devise  or  other  fact  authorizing  its  execu- 
tion to  the  grantee  in  order  to  connect  him  with  the  sale,  and 
show  the  authority  of  the  officer  in  making  the  deed  to  one 
other  than  the  original  purchaser. 

(Messerschmidt  v.   Baker,   22  Minn.   81.) 

In  judicial  sales  the  purchaser  becomes  a  party  to  the 
proceedings  by  reason  of  his  bid,  and  the  court  has  full  power 
and  control  of  the  proceedings  of  sale  until  the  delivery  of  the 
deed,  and  if  the  purchaser  directs  a  deed  to  be  made  to  sfome 
one  else,  it  is  valid  if  othorw  i-e  regular. 


WHEN.  BY  WHOM  AND  TO  WHOM,  DEED  TO  BE  MADE. 


363 


(Williams  v.  Harrington,  n    [red.  616;   Proctor  v.   Furnam,  5   Paige,1 
614;  Ewing  v.  Higby,  7  Ohio,  L78;   Voorhia  v.  Hank.  10  Pet.  47< ;   Bloa 
som  v.   Railway  Co.,   3   Wall.   196.) 

When  Deed  Made  where  Right  of  Redemption  Exists. 

§  409.  During  the  period  of  redemption  provided  by  stat- 
ute, the  legal  title  to  the  land  remains  in  the  judgment  debtor, 
in  execution  and  other  forced  sales.  Only  the  equitable,  as 
contra-distinguished  from  the  legal  title,  is  voted  in  the  pur- 
chaser before  the  expiration  of  the  period  of  redemption. 
Accordingly,  a  deed  made  by  the  sheriff  in  sales  under  execu- 
tion, before  the  expiration  of  redemption  is  void,  as  the  officer 
has  no  power  to  execute  and  deliver  the  conveyance  until  the 
time  to  redeem  has  transpired,  which  is  the  incident  which 
invests  him  with  authority  to  execute  a  proper  deed  if  there 
is  no  redemption. 

(Perham  v.  Kuper,  Gl  Cal.  331;  Delahy  v.  McConnell,  4  Scam.  157; 
Bernal  v.  Gleim,  33  Cal.  668;  Gorham  v.  Wing,  to  .Mich.  486;  Monro  v. 
Martin,  as  Cal.  42s;  Hall  v.  Yoell,  45  Cal.  584;  Goss  v.  Fowler,  21  Cal. 
392.) 

In  Iowa  it  is  held  that  the  instrument  dates  its  efficacy  as  a 
deed  of  conveyance  from  the  time  of  actual  delivery,  and 
not  from  its  apparent  date,  so  that  if  it  is  executed  prior  to 
the  expiration  of  the  period  of  redemption,  but  not  actually 
delivered  until  subsequent  thereto,  the  deed  is  valid. 

(Warfield  v.  Woodward,  4  G.  Greene,  3S6.) 

When  Deed  Executed  where  no  Right  to  Redeem  Exists. 

§  410.  In  states  where  there  is  no  right  of  redemption 
provided  by  statute,  the  deed  in  pursuance  of  such  sale  may 
be  made  at  any  time  after  the  payment  of  the  purchase 
money;  and  the  same  rule  obtains  when  redemption  is  pro 
vided  but  where  an  immediate  conveyance  is  permitted  not- 
withstanding the  right  to  redeem.  The  execution  and  de- 
livery of  a  deed  upon  sale  under  execution  prim-  to  the  pay- 
ment of  the  purchase  money  is  unauthorized  upon  the  theory 
that  the  payment  of  the  money  is  a  condition  precedent  to  the 
delivery  of  the  deed,  and  that  prior  to  this  there  is  no  sale. 

(Carnahan  v.  Yerkes,  R7  Ind.  62;  Burk  v.  Bank,  3  Head.  680;  John- 
son v.  Hines,  61  Md.  122;  Chapman  v.  Harwood,  8  Blackf.  82  —  44  Am. 
Dec.  736;  State  v.  Lawson,  14  Ark.  114:  Ruckle  v.  Barbour,  4S  Ind.  274.) 


364  VOID   JUDICIAL    AND    EXECUTION    SALES. 

In  Alabama  under  a  provision  of  statute  authorizing  the 
execution  of  a  deed  in  sales  by  administrators  only  after  the 
full  payment,  of  the  purchase  price  of  the  land,  a  conveyance 
made  prior  to  such  payment  is  held  to  be  a  nullity,  and  will 
not  divest  the  title  of  the  heirs. 

(Gardner  v.  Kelso,  80  Ala.  497  —  2  So.  Rep.  680;  Corbitt  v.  Clenny, 
52  Ala.  480]  Cruil&hank  v.  Lutterll,  67  Ala.  318;  Ketchum  v.  Creagh, 
52  Ala.  224;  Wood  v.  Sullens,  44  Ala.  636.) 

Statute  Requiring  Deed  Made  Within  a  Certain  Time. 

§  411.  By  provisions  of  statute  the  license  for  the  sale  of 
land  by  an  administrator  or  guardian  continues  in  force  for 
one  year  only  in  Maine  and  Massachusetts,  and  it  is  held  in 
these  states  that  the  execution  of  the  deed  in  pursuance  of  the 
sale  under  the  license  is  part  of  the  sale  and  that  it  must  be 
made  within  the  life  of  the  license  or  else  it  is  void.  It  is 
difficult  to  sustain  these  adjudications  when  construed  in  the 
light  of  principle  and  reason,  for  the  sale  is  certainly  com- 
plete when  the  money  is  paid  and  confirmation  regularly 
entered,  whereupon  the  purchaser  is  the  equitable  owner 
without  question,  and  being  such,  can  protect  his  rights  by 
a  proceeding  in  equity. 

(Mason  v.  Ham.  36  Me.  571;  Wellman  v.  Lawrence,  15  Mass.  326; 
Jewett  v.  Jov.ett.  10  Gray,  31;  Richmond  v.  Gray.  3  Allen,  25:  Macy 
v.  Raymond.  9  Pick.  287;  Poor  v.  Larabee,  58  Me.  543.) 

On  principle  and  reason  it  would  seem  that  when  the  right 
to  a  deed  has  once  matured  it  can  be  made  at  any  time  there- 
after, as  the  deed  is  but  the  muniment  of  title  of  the  purchaser 
to  the  land.  "But  in  Illinois  by  provision  of  statute  the  deed 
i-  required  to  be  made  within  a  certain  time  after  the  expira- 
tion of  the  time  of  redemption,  and  further  that  if  no  deed  is 
taken  out  within  the  time  limited  the  certificate  of  pur'  h  ise 
shall  be  void,  the  deed  under  execution  or  decree  subse- 
quently issued  thereon  is  a  nullity,  and  passes  no  title.  A 
court  of  equity  has  no  jurisdiction  to  decree  a  deed  thereafter, 
for  by  doing  so  it  would  in  effect  be  a  virtual  annulment  of 
the  statutory  mandate  as  well  as  an  infringement  of  the 
vested  rights  of  oilier-.  Sue!,  certificate  of  purchase,  it  is 
held,  becomes  functus  officio  and  void,  and  can  furnish  no 
foundation  for  a  right  to  a  conveyance. 


WHEN,  BY  WHOM  AND  TO  WHOM,  DEED  TO  BE  MADE. 


365 


(Seeberger  v.  Wineberg,  151  111.  369-37  N.  E.  Rep.  1033;  Peterson 
v  Emmerson,  135  111.  55-25  N.  E.  Rep.  842;  Rhmer  v.  Frank,  105  111. 
326;  Brown  v.  Ridenhower,  161  111.  239-43  N.  W.  Rep.  976.) 

If  Required  Confirmation  Must  be  First  Had. 

§  412.  Notwithstanding  the  period  of  redemption  has  ex- 
pired and  there  has  been  no  redemption  from  the  sale,  if  a 
confirmation  of  the  sale  by  the  court  is  a  requirement  of 
statute,  a  deed  made  withoul  it  is  a  mere  nullity  and  passes 
no  title.  Confirmation  is  a  pre-requisite  to  the  making  of  the 
conveyance,  without  which  no  deed  can  be  executed. 

(Bank  v.  Huntoon,  33  Kan.  577-H  Pac.  Rep.  369;  McBain  v.  Mc- 
Bain 15  (Huo  St.  337-86  Am.  Dec.  478;  Curtis  v.  Norton  1  Ohio,  278; 
Greer  v.  Anderson.  62  Ark.  213-35  S.  W.  Rep.  215;  Insurance  Co.  v. 
Sampson,  38  Ohio  St.  072;  Henderson  v.  Herrod,  23  Miss.  434;  Dickerson 
v  Talbot  H  B.  Mon.  60;  Valle  v.  Fleming,  19  Mo.  454-61  Am.  Dec. 
566;  Rawlings  v.  Bailey,  15  111.  178;  Wallace  v.  Hall,  19  Ala.  367;  Young 
v.  Keogh.  11  111.  642.) 

Execution  of  Deed  Compelled  if  Officer  Refuses  to  Make  It. 

§  413.  Several  remedies  are  available  and  adequate  in  case 
the  purchaser  is  entitled  to  his  deed  and  the  proper  officer 
surreptitiously  refuses  to  execute  it.  The  right  of  the  pur- 
chaser to  this  muniment  of  title  not  being  contingent,  nor  de- 
pendent upon  the  discretion  of  the  officer,  but  being  fixed  and 
cognizable  at  law,  the  execution  of  the  proper  deed  of  convey- 
ance in  pursuance  of  the  sale  may  be  compelled  by  a  proceed- 
ing in  mandamus, 

(Van  Rensselaer  v.  Sheriff.  1  Cow.  501;  Whitney  V.  Butler,  29  Mich. 
122-  People  v.  Ransom,  2  Comst.  490;  Martin  v.  Board.  5  Mich.  223; 
People  v  Irwin,  14  Cal.  428;  People  v.  Fleming,  2  N.  Y.  4S4;  Secretary 
v.  Insurance  Co.,  19  Mich.  392;  Marbury  v.  Madison.   1  Cranch,   49.) 

or  by  motion  in  the  original  case  for  an  order  directing  the 
officer  to  execute  the  conveyance,  the  proceedings  being  con- 
sidered in  fieri  until  the  proper  deed  has  been  executed  and 
delivered. 

(Boyd  v.  Ellis,  107  Mo.  394-18  S.  W.  Rep.  29;  People  v.  Haskins, 
7  Wend.  463;  Higgins  v.  Bordages,  28  S.  W.  Rep.  350;  Thornton  v. 
Miskimmon,  48  Mo.  219;  Bay  v.  Cilliland.  1  Cow.  220.) 

Or  the  same  result  may  be  accomplished  by  a  suit  in  equity. 

(Piatt  v.  McCullough,  1  McLean,  69;  Witham  v.  Smith,  5  Gratt.  203.) 


>66  VOID   JUDICIAL    AND    EXECUTION    SALES. 


WHEN    DEED    VOID    BECAUSE    DEFICIENT    IN 
FORM  AND  SUBSTANCE. 

General  Rule  as  to  Sufficiency  of  Deed. 

§  414.  As  a  general  rule,  deeds  based  upon  sales  under 
execution,  as  in  judicial  sales,  are  sufficient  if  a  mere  reference 
for  identification  is  made  to  the  writ,  order  of  sale  or  decree, 
which  need  not  be  set  out  therein  at  length.  Even  if  an  in- 
accurate reference  to  the  execution  is  made,  the  instrument  is 
nevertheless  not  void  on  that  account,  for  such  variance  is 
deemed  immaterial  if  the  deed  is  in  fact  based  upon  a  proper 
foundation  —  a  valid  judgment,  execution  or  order,  and  a 
levy  where  one  is  required.  By  a  parity  of  reasoning,  if  the 
recital  of  an  execution  is  not  absolutely  essential  to  the  valid- 
ity of  the  deed,  any  mistake  or  variance  in  the  recital  will  not 
impair  the  validity  of  the  conveyance.  If  the  deed  can  be 
traced  back  to  the  authentic  source,  such  variance  is  but  a 
mere  irregularity  and  immaterial,  in  so  far  as  the  efficacy  of 
the  deed  is  concerned. 

Therefore,  if  there  is  sufficient  in  the  deed  to  identify  the 
judgment  and  execution  under  which  the  sale  was  made,  any 
misrecital  may  be  rejected  as  surplusage.  Even  if  it  is  a 
statutory  requisite  that  a  reference  in  the  deed  be  made  to 
the  order  of  sale  and  confirmation,  or  that  the  same  be  set 
out  therein,  mere  errors  in  such  reference  are  not  fatal,  if  it 
is  apparent  that  it  is  a  mistake,  and  this  is  evident  from  the 
whole  instrument.  If  the  intention  to  embrace  the  proper 
orders  can  be  gathered  from  the  deed  taken  as  a  whole,  and 
that  these  were  actually  made,  the  instrument  is  not  void,  as  a 
general  rule 

(Jones  v.  Taylor.  7  Tex.  240  —  56  Am.  Dec.  48;  Moore  v.  Wingate,  53 
Mo.  398;  Sheldon  v.  Wright.  5  1ST.  Y.  497;  Clark  v.  Sawyer,  48  Cal.  133*; 
Mitchell  v.  Bliss,  47  Mo.  35?,;  Humphrey  v.  Beeson,  1  G.  Greene,  199  — 
48  Am.  Dec.  370;  Davis  v.  Kline,  7(1  Mo.  310;  Williams  v.  Woodman, 
73  Me.  163;  Clover  v.  Biiilin,  6  Ohio.  255;  Thomas  v.  Le  Baron,  8  Met. 
361;  Bolman  v.  Gill,  107  111.  4f>7:  Armstrong  v.  McCoy,  8  Ohio,  128  — 
31  Am.  Dec.  435;  Jackson  v.  Jones,  9  Cow.  182;  Reid  v.  Heasley,  9 
Dana,  324;  Swift  v.  Agnes,  33  Wis.  228;  Speck  v.  Biggins,  40  Mo.  405; 
Frazier  v.  Moore,  .11  Tex.  755;  Loomis  v.  Riley,  24  111.  307;  Acock  v. 
Stuart,   57  Mo.  150.) 


WHEN  DEED  VOID   BECAUSE   DEFICIENT  IX   FORM. 


36T 


Recitals  Sufficient  in  Teed  under  Execution.  _ 

8  415  If  a  deed  made  in  pursuance  of  an  execution  sale 
recites  enough  to  show  the  authority  of  the  officer  to  sell,  it 
is  generally  considered  sufficient,  notwithstanding  its  fail* 
to  recite  all  the  statute  requires  in  this  regard.  To  this  extent 
the  same  rule  obtains  in  deeds  under  execution  as  to  those 
made  under  decrees  or  orders  of  court,  for  the  authority  oi  the 
officer  to  make  the  sale  and  execute  the  conveyance  depends 
upon  precedent  facts,  the  showing  of  which  is  not  restricted 
to  the  recitals  in  the  deed  but  may  be  shown  otherwise. 

(Burt  v.  Haasehnan,   139  Ind.  100-3*  X.  E    Rep    598;   Wilson  v. 
Campbell,  33  Ala.  240-70  An,  Deo.  586;   Perkms  v.   KM*    1      <>^ 
4«-36    \m    Dec.   97:   Martin  v.   Beeson.   1   G.   Greene,   109-48  Am. 
Z.  370 ;  tlb  v.  Sherman,  19  Xeb.  681  -  28  X.  W.  Rep.  319 ;   Ha,™ 
^Maxwell.  2  Xott  &  MeC.  347-10  An,  Dec.  611;   Armstrong  v    M* 
Cov.   8  Ohio.   128-31   An,   Dec.  435:    Howard  v.   North    5  Tex.  290 
51-Am.   Dec.    769;    Blood   v.    Light,   88   0*    649 - 9   An.-  Dec   441 
Buchanan  v.   Tracy.   45   Mo.   437;   Brooks  v.   Rooney.   11  G* JM       56 
An,  Dec.  430;   Phillip,  v.  Coffee.  17  111.  154-63  Am.  Dec.   3o7;  Hind 
v    Scott.  11  Pa.  St.  19-51  An,  Dec.  506:  McGuire  v.  Kouns.    ,    f.  B. 
Mon    386-18  Am.  Dec.  187;  Stow  v.  Steel,  45  111.  328;  Keitn  v.  Kerth, 
104  111.  401;  Haskins  v.  Wallet,  63  Tex.  213.) 

Even  in  states  where  particular  recitals  are  by  statute  re- 
quired to  be  contained  in  the  deed,  courts  have  generally  held 
such  provisions  not  mandatory,  and  a  non-compliance  there^ 
with  not  necessarily  fatal.  In  such  states,  if  the  deed  is  not 
executed  in  conformity  to  the  requirements  of  statute,  but 
discloses  the  authority  to  sell  and  that  this  authority  has 
been  pursued  in  substantial  compliance  with  all  the  require- 
ments of  the  law,  the  instrument  has  almost  universally  been 
held  sufficient,  notwithstanding  the  deviation  from  the  pre- 
scribed form.  The  object  in  requiring  particular  recitals  is 
to  make  the  deed  evidence,  and  not  to  make  it  void  m  case 
of  non-compliance  with  the  statute. 

(Clark  v.  Sawyer.  48  Cal.  133:  Jordan  v.  Bradshaw,  17  Ark.  106-65 
Am  Pec  419-  Perkins  v.  Dibble.  10  Ohio.  433-36  Am.  Dec.  9,  ;  Betti 
fon 'v  B„dc  "  H  Ark.  540-65  An,  Dec.  442;  Ogden  v.  Walters,  L2  Kan. 
^^hnan  v.  Gill,  107  111.  407:  Buchanan  v.  Tracy,  45  Mo.  437;  Stram 
V.  Tracy,   49  Ind.  337.) 

In  Missouri  it  is  held  that  a  deed  is  void  upon  its  face  when 
it  appears  that  the  property  was  sold  for  less  than  three- 


368  VOID   JUDICIAL    AND    EXECUTION    SALES. 

fourths  of  the  appraised  value,  in  violation  of  the  statute  in 
this  regard. 

(Carder  v.  Culbertson,  100  Mo.  269  —  13  S.  W.  Rep.  88.) 

Instances  of  Omission  or  Insufficient  Recitals. 

§  416.  If  certain  recitals  are  not  indispensable  to  the  va- 
lidity of  the  deed,  the  misrecital  of  any  such  fact,  as  a  logical 
sequence,  will  not  make  the  instrument  void.  It  is  the  settled 
policy  of  the  law  to  sustain,  rather  than  destroy,  the  validity 
of  compulsory  sales  under  judicial  proceedings. 

(Holston  v.  Needles,  115  111.  461  —  5  N.  E.  Rep.  530;  Howard  v. 
North.  5  Tex.  290  —  51  Am.  Dec.  769;  Saltonstall  v.  Riley,  28  Ala.  164 
—  65  Am.  Dec.  334;  Wilson  v.  Campbell,  33  Ala.  249  —  70  Am.  Dec. 
586;  Doe  v.  Rue,  4  Blackf.  263  —  29  Am.  Dec.  368;  McGuire  v.  Kouns, 
7  T.  B.  Mon.  386  —  18  Am.  Dec.  187;  Carmichael  v.  Strawn,  27  Ga.  341; 
Stow  v.  Steel.  45  111.  328;  Swift  v.  Lee,  65  111.  330;  Kruse  v.  Wilson, 
79  111.  233;  Blood  v.  Light,  3S  Cal.  649  —  99  Am.  Dec.  441:  Harlan  v. 
Harlan,  14  Lea.  107:  Hughes  v.  Dice,  1  Swan,  329;  Herrick  v.  Graves, 
16  Wis.  157;  Allen  v.  Sales,  56  Mo.  28.) 

The  omission  to  recite  in  the  sheriif's  deed  from  what  court 
the  writ  issued  under  which  he  sold  will  not  make  the  deed 
void,  provided  the  execution  did  in  fact  issue  out  of  the 
proper  court  and  has  been  properly  returned,  thus  supplying 
the  discrepancy. 

(Hayward  v.  Cain.  110  Mass.  273;  Welsh  v.  Joy,  13  Pick.  477.) 

Or  where  there  is  no  recital  of  a  levy  under  the  execution, 
(Foulk  v.  Colburn,  48  Mo.  225.) 

or  a  failure  to  show  the  reason  why  a  sale  was  not  made  at 

the  first  term  of  the  court  at  which  the  writ  was  returnable, 

(Groner  v.  Smith,  49  Mo.  318;  Stewart  v.  Severance.  43  Mo.  322.) 

or  a  misrecital  of  the  exact  day  whereon  the  sale  occurred, 

(Buchanan  v.  Tracy,  45  Mo.  437;  Strain  v.  Murphy.  49  Mo.  337.) 

will  not  make  the  deed  a  nullity.  And  if  the  execution  mis- 
recites  the  date  of  the  judgment  the  irregularity  is  immaterial, 
and  a  misrecital  of  the  execution  in  the  deed  where  authority 
to  sell  in  fact  existed,  doc*  not  affect  the  validity  of  the  deed. 
(Mills  v.  Lombard,  32  Minn.  259  —  20  X.  W.  Rep.  1>~ :  Wilson  v. 
Madison,  55  Cal.  5;  Blood  v.  Light,  38  Cal.  649  —  99  Am.  Dec.  441.) 

Tint  if  the  time  of  sale  is  required  to  be  recited,  and  where 
under  the  statute  a  sale  under  execution  can  take  place  only 


WHEN    DEED   VOID   BECAUSE    DEFICIENT   IN    FOEM. 


369 


at  certain  designated  periods,  as  for  instance,  during-  a  term 
of  the  court,  the  recital  is  essential  and  the  deed  void  with- 
out it ; 

(Tanner  v.  Stein,  IS  Mo.  580-59  Am.  Dec.  320;  Martin  v.   Bonsach, 

61  Mo.  556.) 

or  where  the  deed  did  not  contain  a  recital  of  a  judgment,  the 
deed  was  held  void,  the  omission  being  of  a  matter  absolutely 
essential  to  the  support  of  the  proceedings  of  sale 
(Dufour  v.  Camfranc,  11  Mart.  G07  — 13  Am.  Dec.  360.) 

Deeds  in  Probate  Proceedings. 

§  417.  In  Illinois  under  a  statute  requiring  that  the  order 
in  a  probate  sale  be  fully  set  out  in  the  deed  it  was  held  that 
this  requirement  was  imperative,  and  a  mere  recitation  of 
the  substance  of  the  order  insufficient  and  fatal  to  the  deed, 
the  provision  being  mandatory. 

(Smith  v.  Hileman,   1  Scam.   323.) 

But  it  is  difficult  to  harmonize  this  decision  with  the  general 
principles  of  law  in  this  regard.  If  the  order  is  sufficiently 
referred  to  in  the  conveyance  so  as  to  identify  the  same,  1 
am  unable  to  comprehend  by  what  process  of  reasoning  or  rule 
of  law,  the  deed  can  be  considered  void,  unless  substance  is 
made  to  yield  to  form. 

If  there  was  an  entire  omission  to  refer  to  the  order  or  a 
radically  imperfect  reference  thereto  was  made,  there  would 
be  some  reason  in  holding  the  deed  void  under  such  statutes, 
though  even  this  is  not  universally  held  sufficient  to  avoid  the 
deed. 

(Aitken  v.  Kinnan,  20  Wend.  241-32  Am.  Dec.  534:  Hamnian  v. 
Mink.   99  Ind.   279.) 

In  the  absence  of  provision  of  statute  as  to  form  or  con- 
tents of  deeds  by  administrators,  executors  and  guardians, 
the  convevances  of  these  officials  should  make  special  refer- 
ence to  the  «»rder  or  license  under  which  they  have  sold  the 
land,  and  that  the  proceedings  had  by  them  were  under  and 
in  pursuance  of  such  order  or  license. 

(Jones  v.  Taylor,  7  Tex.  240-56  Am.  Dec.  48;  Bobb  v.  Barnum  59 
Mo.  394;  Howard  v.  Lee.  25  Conn.  1-65  Am.  Dec.  550;  Henry  v.  Mc- 
Kerlie.  78  Mo.  416.  Kingsbury  v.  Wild,  3  N.  H.  30;  Watson  v.  Watson, 
10  Conn.  77.) 

24 


370  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

Kecitals  as  Evidence  by  Statute. 

§  418.  Recitals  in  deeds  based  upon  sales  under  execution 
are  made  evidence  by  statute  in  several  states,  and  are  re- 
garded generally  as  prima  facie  true  as  concerns  the  various 
steps  in  the  proceedings  of  the  officer  as  well  as  the  precedent 
authority  to  make  the  levy  and  sale. 

(Farrior  v.  Houston,  100  N.  C.  369  —  6  S.  E.  Rep.  72;  Evans  v.  Rob- 
berson,  92  Mo.  192  —  4  S.  W.  Rep.  941;  Bettison  v.  Budd,  17  Ark.  546  — 
65  Am.  Dee.  442;  Zabriskie  v.  Meade,  2  Nev.  285  —  90  Am.  Dec.  542; 
MoKee  v.  Lineberger,  87  N.  C.  181;  Osborne  v.  Tunis,  25  N".  J.  L.  633; 
Miller  v.  Miller,  89  N.  C.  402;  Hardin  v.  Cheek,  3  Jones  L.  135—64 
Am.  Dee.  600;  Kelly  v.  Creen,  53  Pa.  St.  302;  Bartlett  v.  Feeney,  11 
Kan.  593;  Samuels  v.  Shelton,  48  Mo.  444;  Donahue  v.  McNulty,  24 
Cal.  411  —  85  Am.  Dec.  78;  Jordan  v.  Bradshaw,  17  Ark.  106  —  65  Am. 
Dec.  419;  Clark  v.  Sawyer,  48  Cal.  133;  Gossetti  v.  Kent,  19  Ark.  602; 
Bonnell  v.  Roane,  20  Ark.  114;  Blatchford  v.  Conover,  40  N.  J.  Eq.  205 
—  1  Atl.  Rep.  16.) 

Sufficiency  of  Description  Essential. 

§  419.  In  deeds  founded  upon  sales  under  execution  as 
well  as  those  made  pursuant  to  judicial  sales,  the  description 
of  the  land  sold  and  intended  by  the  instrument  to  be  con- 
veyed is  a  matter  of  great  importance.  While  the  policy  of 
the  law  does  not  require  the  courts  to  scrutinize  the  proceed- 
ings of  sale  in  judicial  proceedings  with  a  view  of  def eating- 
it,  but  rather  indulges  in  every  reasonable  intendment  to  sus- 
tain it,  yet  there  must  be  sufficient  in  the  description  to 
ascertain  what  land  is  intended  to  be  transferred  thereby.  If 
it  fails  to  give  this  it  is  void  for  uncertainty. 

(Herrick  v.  Animermann,  32  Minn.  544  —  21  N.  W.  Rep.  836;  PfeifTer 
v.  Lindsay,  66  Tex.  123  —  IS.  W.  Rep.  264 ;  Bassett  v.  Sherrod,  32  S. 
W.  Rep.  312;  Jackson  v.  Rosevelt,  13  Johns.  97;  Clemens  v.  Ronnels. 
34  Mo.  579;  Herrick  v.  Morrill,  37  Minn.  250  —  33  N.  W.  Rep.'X49; 
Hughes  v.  Streeter,  24  111.  647  —  76  Am.  Dec.  777;  Head  v.  James.  13 
Wis.  641;  Deloach  v.  Bank,  27  Ala.  437;  Lafferty  v.  Higgins,  9  Ohio  St. 
599;  Edmonson  v.  Hooks,  11  Ired.  373;  Hannel  v.  Smith.  15  Ohio.  134; 
Round  v.  Pullen,  3  Yerg.  338;  Evans  v.  Ashley,  8  Mo.  177;  Worthing- 
ton  v.  Hylyer,  4  Mass.  196;  Wooters  v.  Arledge,  54  Tex.  397;  White  v. 
Luning,  93  U.  S.  514;  Marshal  v.  Greenfield,  8  O.  &  J  358  —  29  Am. 
Dec.  559;  De  Sepulvada  v.  Baugh,  74  Cal.  468  —  16  Pac.  Rep.  223.) 

As  a  general  rule,  as  the  deed  is  but  the  culmination  of 
the  antecedent  proceedings  in  the  cause,  lli<'  intent  of  the 
functionary  making  it  may  be  gathered  from  such  proceed- 


TITLE  OBTAINED  BY    PUECHASEE  AT  SALE.  371 

ings,  if  the  description  contained  in  the  conveyance  be  am- 
biguous. Extrinsic  evidence  may  be  received  to  clearly  locate 
and  identify  the  land  conveyed  in  the  deed  containing  an  ac- 
curate but  general  description,  for  it  is  by  no  means  indispen- 
sable that  the  property  can  be  identified  definitely  from  a  mere 
inspection  of  the  description  in  the  deed  itself.  If  the  am- 
biguity in  the  description  in  the  deed  is  not  of  sufficient 
magnitude  to  make  it  impossilde  to  identify  the  property, 
either  by  extrinsic  evidence  or  by  consulting  the  record  in  the 
cause,  the  deed  is  not  void  for  uncertainty  of  description. 

(Smith  v.  Crosby,  86  Tex.  15  —  23  S.  W.  Rep.  10:  McGhee  v.  Hoyt. 
10G  Pa.  St.  516;  Giddings  v.  Day,  84  Tex.  60S— 19  S.  W.  Rep.  682; 
Godfrey  v.  Monroe,  101  Cal.  224  —  35  Pac.  Rep.  261;  Wilson  v.  Smith. 
50  Tex.  370;  West  v.  Cochran,  104  Pa.  St.  482;  De  Sepulvada  v.  Baugh, 
74  Cal.  468  —  16  Pac.  Rep.  223;  Wildasin  v.  Rare.  171  Pa.  St.  387  — 
33  All.  Rep.  365;  Tatum  v.  Croom.  60  Ark.  4S7  —  30  S.  W.  Rep.  S85.) 

Omission  or  Defective  Acknowledgment. 

§  420.  In  several  states  an  acknowledgment  sufficient  in 
it -elf  as  such  is  an  essential  part  of  a  sheriff's  deed  under 
execution.  If  it  lacks  an  acknowledgment  altogether,  or  is 
imperfectly  acknowledged,  the  deed  is  considered  void  when 
assailed  collaterally,  and  no  title  is  acquired  thereby. 

(Lee  v.  Newland,  164  Pa,  St.  360  —  30  Atl.  Rep.  258;  Adams  V. 
Buchanan,  49  Mo.  64;  De  Haven's  Appeal,  38  Pa,  St.  373;  McClure  v. 
McClure,  53  Mo.  173;  McCormick  v.  Meason,  1  S.  &  R.  92;  Samuels  v. 
Sholton.  48  Mo.  444;    Bellas  v.  McCarty,    10  Watts.   13.) 

But  elsewhere  the  acknowledgment  is  not  considered  es- 
sential to  its  validity  as  a  conveyance,  and  manifestly  if  de- 
fective it  will  not  be  fatal  to  the  deed,  as  the  acknowledg- 
ment is  considered  no  part  of  the  deed. 

(In  re  Smith,  4  New  254  —  97  Am.  Dec.  531;  Stephenson  v.  Thomp- 
son. 13  111.  186;  Dixon  v.  Doe,  5  Blatchf.  106;  Hutchinson  v.  Kelly,  10 
Ark.   178;   Ogdcn  v.  Walters,   12  Kan.   291.) 

TITLE    OBTAINED   BY   PrBCITASER    AT    EXECU- 
TION AND  JUDICIAL  SALE. 

In  Judicial  Sales. 

§  421.  The  order  of  sale  or  decree  is  the  foundation  of  the 
proceedings  of  sale  in  a  judicial  sale  and  nothing  more  can 


3T2  VOID    JUDICIAL    AND    EXECUTION    SALES. 

be  conveyed  by  the  deed  made  in  consummation  thereof  than 
was  authorized  in  such  order  or  decree. 

(Ryan  v.  Dox.  25  Barb.  440;  Neel  v.  Hughes.  10  G.  &  J.  7;  Shriver  v. 
Lynn,  2  How.  43;  Melton  v.  Fitch,  125  Mo.  2S1  —  2S  S.  W.  Rep.  612; 
Evans  v.   Snyder,  34  Mo.   516.) 

A  deed  purporting  to  convey  the  entire  estate  in  real  prop- 
erty will  not  convey  the  interest  held  by  one  not  made  a  parry 
to  the  proceedings,  as  a  matter  of  common  justice  and  con- 
stitutional right,  as  he  must  have  his  day  in  court. 

(Telegraph  Co.  v.  Safe  Deposit  Co.,  147  U.  S.  431  —  13  Sup.  Ct.  Rep. 
396.) 

Suits  in  mortgage  foreclosure  are  judicial  and  the  deed 
based  upon  such  sale  transmits  the  entire  interest  of  both 
mortgagor  and  mortgagee  in  the  premises. 

(Carter  v.  Walker.  2  Ohio  St.  339;  Parmenter  v.  Birkley,  28  Ohio  St. 
36 ;  Brown  v.  Bank,  44  Ohio  St.  269  —  6  N.  E.  Rep.  648 ;  Andrews  v. 
Wolcott,    16   Barb.   21.) 

What  Title  Obtained  by  Deed  under  Execution  Sale. 

§  422.  It  is  a  general  rule  of  law  that  the  sale  and  deed 
under  execution  transfers  to  the  purchaser  only  the  title  of  the 
judgment  debtor  in  the  premises  conveyed; 

(Hargraves  v.  Meneken,  45  Neb.  668  —  63  N.  W.  Rep.  951;  Curriden 
v.  Railway  Co.,  50  Minn.  454  —  52  N.  W.  Rep.  966;  Westheimer  v.  Reed, 
15  Neb.  632  —  19  N.  W.  Rep.  502;  Dial  v.  Freeman,  92  N.  C.  351;  Mc- 
Arthur  v.  Oliver,  60  Mich.  605  —  27  N.  W.  Rep.  689;  Gentry  v.  Calla- 
han, 98  X.  C.  448  —  4  S.  E.  Rep.  535 ;  Mansfield  v.  Gregory,  8  Neb.  432 ; 
Dickinson  v.  Kinney,  5  Minn.  409;  Reynolds  v.  Cobb.  15  Neb.  378  — 
19  N.  W.  Rep.  502;  Carney  v.  Emmons,  9  Wis.  114;  O'Neal  v.  Wilson, 
21  Ala.  2S8;  Bank  v.  King,  110  111.  254;  Treptow  v.  Buse,  10  Kan.  170; 
Emerson  v.  Sansome,  41  Cal.  552;  Taylor  v.  Eckford,  11  S.  &  M.  21; 
Boyd  v.  Ellis,  107  Mo.  394;  Paxton  v.  Stern,  127  Ind.  289;  Morse  v. 
Bank,  47  N.  J.  Eq.  279.) 

but  not  after-acquired  interests,  which  do  not  pass  with  the 
deed. 

(Westheimer  v.  Reed,  15  Neb.  662  —  19  N.  W.  Rep.  626;  Erwin  v. 
Garner,  108  Ind.  488  —  9  N.  E.  Rep.  417.) 

Covenants  of  title  pass  with  the  deed  by  operation  of  law 
as  an  incident  to  the  estate. 

(Mygatt  v.  Coo,  142  N.  Y.  78  —  36  N.  E.  Rep.  870;  Lewis  v.  Cook. 
13  Ired.   193;   Andrews  v.  Wolcott,  16  Barb.   25;   Town  v.   Newland,   3 


EFFECT   OF   DEED   BY    RELATION.  373 

Paige.  540:  Carter  v.  Denman,  23  N.  J.  L.  270;  Markland  v.  Crump,  1 
Dev.  &  Bat.  94:  White  v.  Presley.  54  Miss.  313;  Miller  v.  Babeoek,  25 
Mich.   137;   White  v.  Whiting,   3  Met.   81.) 

But  where  the  defendant  held  but  the  naked  legal  title  to 
the  land  unconnected  with  any  beneficial  interest  therein,  no 
title  is  transferred  by  the  deed  under  execution. 

(Morrison  v.  Harrington,  120  Mo.  665  —  25  S.  W.  Rep.  568;  Willis  v. 
Loeb,  59  Miss.  169;  Baker  v.  Copenbarger,  15  111.  103  —  58  Am.  Dec. 
600;  Bostick  v.  Keiser,  4  J.  J.  Marsh.  597  —  20  Am.  Dec.  237;  Hunt  v. 
Townshend,  31  Md.  336.) 

At  common  law  equitable  estates  could  not  be  subjected  to 
sale  on  execution,  but  must  be  reached  through  the  court  of 
equity,  but  this  rule  has  no  application  where  the  equitable 
estate  is  coupled  with  the  possession  of  the  land. 

(Shoemaker  v.  Barvey,  43  Neb.  75  —  61  N.  W.  Rep.  109;  Connell  v. 
Galligher,  36  Neb.  749  —  58  N.  W.  Rep.  438;  Dworak  v.  Moore,  25  Neb. 
735  —  41  N.  W.  Rep.  777:  Bank  v.  Tigh,  68  N.  W.  Rep.  490;  Potter  v. 
Couch.  141  U.  S.  296—11  Sup.  Ct.  Rep.  1005;  Brandies  v.  Cochrane, 
112  U.  S.  344  —  5  Sup.  Ct.  Rep.  194;  Lee  v.  Enos,  97  Mich.  276  —  56 
N.  W.  Rep.  550;  Calhoun  v.  Leary,  6  Wash.  17  —  32  Pac.  Rep.  1070; 
Atwater  v.  Bank,  45  Minn.  341  —  4S  N.  W.  Rep.  187;  Doheny  v.  Dyna- 
mite Co.,  41  W.  Va.   1  —  23  S.  E.  Rep.   525.) 

Lands  fraudulently  conveyed  may  be  sold  under  execution 
by  a  judgment  creditor  of  the  grantor,  and  the  deed  passes 
the  estate  to  the  purchaser,  who,  upon  proving  the  fraud,  is 
entitled  to  have  a  decree  in  his  favor  removing  the  cloud  cast 
upon  the  estate  by  reason  of  the  fraudulent  deed,  and  this 
upon  the  theory  that  a  fraudulent  deed  is  in  legal  effect  no 
deed  at  all. 

(Lionberger  v.  Baker,  88  Mo.  447;  Woodard  v.  Mastin,  106  Mo.  324 
—  17  S.  W.  Rep.  308;  Willard  v.  Masterson,  160  111.  443  —  43  N.  E. 
Rep.  771;  Jacobs  v.  Smith,  96  Mo.  673  —  2  S.  W.  Rep.  13;  Garrett  V. 
Wagner,   125  Mo.  450  —  28  S.  W.  Rep.   762.) 

EFFECT  OF  DEED  BY  "RELATION. 

Relates  Back  to  Inception  of  the  Lien. 

§  423.  A  sheriff's  deed  to  land  sold  under  execution  takes 
effect  as  an  actual  conveyance,  not  from  the  date  of  its  de- 
livery, but  from  the  date  of  the  inception  of  the  original  lien 


374  VOID    JUDICIAL    AND    EXECUTION    SALES. 

which  has  been  merged  in  the  sale  under  execution.  Where 
judgments  are  themselves  general  liens  upon  the  defendant's 
lands  the  deed  takes  effect  as  of  the  date  of  such  lien,  and  as 
a  conveyance  avoids  all  intermediate  incumbrances  or  aliena- 
tions as  far  as  the  execution  purchaser  is  concerned. 

(Greer  v.  Wintersmith,  S3  Ky.  516  —  4  S.  W.  Rep.  232;  Hargraves  v. 
Meneken,  45  Neb.  668  —  63  N.  W.  Eep.  951;  Paxton  v.  Sterne,  127  lnd. 
2S9  — 26  N.  E.  Rep.  557;  Yeazel  v.  White,  40  Neb.  432  —  5S  N.  W. 
Rep.  1020;  Merritt  v.  Richey.  127  lnd.  400  —  27  N.  E.  Rep.  131;  Bank 
v.  Lieuallen,  39  Pac.  Rep.  1108;  Andrews  v.  Howard,  6  How.  554  —  3S 
Am.  Dec.  450;  Reynolds  v.  Cobb,  16  Neb.  37S  — 19  N.  W.  Rep.  502; 
Hibbard  v.  Smith,  67  Cal.  547  —  4  Pac.  Rep.  473;  Bank  v.  Wells,  12 
Mo.  361  —  51  Am.  Dec.  163;  Davidson  v.  Frew,  3  Dev.  3  —  22  Am.  Dec. 
708;  Sharp  v.  Baird,  43  Cal.  577;  Jackson  v.  Diekerscn,  15  Johns.  309  — 
8  Am.  Dec.  236;  Hutchings  v.  Ebeler,  46  Cal.  557;  Swift  v.  Agnes,  33 
Wis.  228;  Martin  v.  Martin,  7  Md.  368  —  61  Am.  Dec.  364;  Parker  v. 
Swan,  1  Humph.  80  —  34  Am.  Dec.  619 ;  Kingman  v.  Glover,  3  Rich.  27 
—  45  Am.  Dec.  756;  Wilhelm  v.  Humphries,  97  lnd.  520;  Wright  v. 
Tichenor,   104  lnd.   185.) 

And  if  the  deed  is  made  upon  proceedings  in  attachment 
it  takes  effect  from  the  date  of  the  attachment  lien  which 
became  merged  in  the  judgment, 

(Bank  v.  Lieuallen,  39  Pac.  Rep.  1108;  Porter  v.  Pico,  55  Cal.  165; 
Ensworth  v.  King,   50  Mo.  477;   Bagley  v.  Ward,  37  Cal.   121.) 

or  in  foreclosure  of  mortgage  to  the  inception  of  the  mortgage 
lien. 

(Land  Association  v.  Viera,  48  Cal.  572;  De  Haven  v.  Londell,  31  Pa. 
St.  120;  Horn  v.  Jones,  2S  Cal.  194;  Champion  v.  Hinkle,  45  N.  J.  Eq. 
162  —  16  Atl.  Rep.  701;  Barnard  v.  Wilson,  74  Cal.  512  —  16  Pac.  Rep. 
307;  Moulton  v.  Cornish,  61  Hun,  438  —  16  N.  Y.  Supp.  267.) 

Sale  under  Several  Executions  when  One  or  More  Void. 

§  424.  Where  the  sale  is  made  under  several  executions, 
one  or  more  valid  and  one  or  more  void,  the  sale  is  in  some 
-fates  nevertheless  considered  valid,  and  will  support  the  offi- 
cer's deed  notwithstanding  the  enumeration  of  the  void  writs 
therein,  as  such  recitation  is  regarded  as  mere  surplusage, 
and  will  not  affect  the  validity  of  the  conveyance,  the  deed 
relating  to  the  inception  of  the  lien  of  judgment  whereon  the 
valid  writ  or  writs  are  founded. 

(Johnson  v.  Mining  Co.,  78  Wi*.  159  —  47  X.  W.  Rep.  363;  Banks  v. 
Evans,   10  S.  &  M.  35  —  48  Am.  Dec.  734;   Derrick   v.   Graves,   16  Wis. 


EFFECT  OF  DEED    1JY    RELATION.  375 

157;    Richards    v.    Allen,    3    E.    D.    Smith,    406;    Brace    v.    Shaw,    L6    1?. 
Mon.  43.) 

But  a  contrary  ruling  obtains  in  Indiana  where  such  a 
sale  and  deed  is  held  to  be  altogether  void  passing  no  title  to 
the  purchaser  thereunder. 

(Ferrier  v.  Deutehman,  111  Ind.  330—12  N.  E.  Rep.  497;  Brown  V. 
McKay,  16  Ind.  4S4;  Hutchens  v.  Doe,  3  Ind.  528;  Clark  v.  Watson,  3 
Ind.  400;  Harrison  v.  Stipp,  8  Blackf.  458.) 


Chapter  VI. 


Collateral    and    Direct    Impeachment    of  Judicial    and 
Execution  Sales. 


ANALYSTS. 

Section  425.  Collateral  and  Direct   Attack   upon  Judicial  Proceedings 

Distinguished  —  Direct  Attack  Defined. 

426.  Instances  of  Direct  Attack. 

427.  Collateral  Attack  Denned. 

428.  Instances  of  Collateral  Attack. 

429.  Presumptions   as   to   Jurisdiction  —  Judgments   of   Courts 

of  General  Jurisdiction. 

430.  Insufficient  Service  Appearing. 

431.  Presumption  in  Case  of  Constructive  Service. 

432.  Presumption  of  Jurisdiction  as  to  Inferior  Courts. 

433.  Presumptions  as  to  Proceedings  of  Probate  Courts. 

434.  When  Collateral  Impeachment  Possible  —  In  Ca.se  of  Want 

of  Jurisdiction  to  Render  Judgment. 

435.  By  Third  Parties. 

436.  Sale   Vacated   by   Direct    Proceeding  —  When    by   Motion 

Must  be  Within  a  Reasonable  Time. 

437.  By  Suit  in   Equity. 

438.  Instances  of  Execution  and  Judicial  Sales  Void  Collater- 

ally—  If  Jurisdiction  is  Wanting  Sale  Void. 

439.  — ■ — -Sales  Founded  upon  Satisfied  Judgments. 

440.  Land  Sold  not  Embraced  in  the  Petition. 

441.  ■  Petition  for  Order  or  License  Fatally  Defective. 

442.  Land  Sold  not  Embraced  in  the  Order  or  Decree. 

443.  No  Notice  of  Application  for  Order  of  Sale. 

444.  Sale  of  Land  Located  in  Another  State. 

445.  Failure  of  Jurisdiction  by  Constructive  Service. 

446.  Sales  in  Foreclosure  of  Tax  Liens. 

447.  No  Additional  Bond,   Notice  of  Sale  Given  or  Oath 

Taken. 

448.  Execution  Sale  at  Wrong  Time  or  Place. 

449.  Sales   Void    Because   of   Defect   in   Execution   or   Its 

Enforcement. 

450.  Sales  Void  Because  of  Fraud  in  Judgment  or  Sale. 

451.  'Trial  Judge  Disqualified  from  Acting. 


COLLATERAL    AND    DIRECT    ATTACK    DISTINGUISHED.       377 

Section  452.  Effect  of  Statute  of  Limitations  on  Judicial  Sale -Stat- 
ute Does  not  Apply  to  Void  Sales. 

453.  Essentials  to  Availability  of  Plea  of  Statute. 

454.  Statutes  Declaring  the  Effect  of  Judicial  Proceedings  — 

Purchase  by  Disqualified  Purchaser. 

455.  Sale  not  Void  when  Certain  Things  Appear. 

456.  Other  Defects  and  Irregularities. 

COLLATERAL  AND  DIRECT  ATTACK  UPON  JUDI- 
CIAL PROCEEDINGS  DISTINGUISHED. 

Direct  Attack  Defined. 

§  425.  The  collateral  impeachment  of  a  judgment  or  other 
judicial  proceeding  is  an  assault  thereon  for  the  contem- 
plated object  of  their  nullification,  evasion  or  avoidance  in 
so  far  as  their  force  or  effect  are  concerned,  in  a  manner  not 
in  accordance  with  the  procedure  provided  by  law,  for  the 
accomplishment  of  such  purpose.  The  chief  element  of  dis- 
tinction between  a  direct  and  a  collateral  attack  upon  a 
judicial  proceeding,  be  it  judgment,  sale  or  otherwise,  is  that 
in  the  former  the  force  and  effect  thereof  is  sought  to  be 
evaded  defeated  or  corrected  according  to  a  procedure  pre- 
-rribed'bv  law,  while  the  effort  to  accomplish  the  same  result 
in  some  other  proceeding,  suit  or  action,  is  a  collateral  attack. 
The  former  is  prosecuted  with  success  when  the  infirmity  com- 
plained of  is  shown,  while  the  latter  can  only  be  successful  in 
case  of  a  total  want  of  power  to  do  what  has  been  done  and 
the  force  and  effect  of  which  is  sought  to  be  evaded  or  de- 

Manifestly  it  is  immaterial  in  what  form  the  proceedings  in 
the  attack  upon  the  judgment  or  other  proceedings  are  pre- 
sented" if  their  review  is  sought,  or  relief  therefrom  is  at- 
tempted to  be  obtained  pursuant  to  the  provisions  of  law  m 
this  regard,  the  attack  is  a  direct  one,  as  contradistinguished 
from  a  collateral  assault.  Obviously,  any  proceeding  prose- 
cuted to  annul,  modify  or  correct  a  judicial  proceeding  is  a 
direct  proceeding  as  a  matter  of  necessity. 

(Pope  v.  Harrison.  16  Lea.  82;  Thompson  v.  McCorkle  136  Ind  484- 
34  NE.  Rep.  813:  Cnlly  v.  Shirk.  131  ind.  76-30  N.  E.  Rep  882; 
Harman  v.  Moore,  112  Ind.  221 ;  13  N.  E.  Rep.  718;  Buchanan  v.  Bilger, 
64  Tex.  589.) 


378  VOID   JUDICIAL    AND    EXECUTION    SALES. 

Instances  of  Direct  Attack. 

§  426.  A  suit  in  chancery  brought  by  one  defendant  to 
cancel  a  judgment  rendered  against  himself  and  co-defendant, 
based  upon  a  verdict  against  the  co-defendant  only,  is  con- 
sidered as  a  direct  attack. 

(Dady  v.  Brown,  76  Iowa,  528  —  41  X.  W.  Rep.  209.) 

And  an  attempt  to  vacate  a  judgment  upon  motion  inter- 
posed in  the  manner  and  within  the  time  authorized  by 
statute, 

(Reinhart  v.  Lugo,  86  Cal.  395  —  24  Pac.  Rep.  10S9;  People  v.  Green, 
74  Cal.  400—16  Pac.  Rep.  197;  Volland  v.  Wilcox,  17  Xeb.  46  —  22 
N.  W.  Rep.  71;  People  v.  Mullen,  65  Cal.  396  —  4  Pac.  Rep.  348.) 

or  a  suit  prosecuted  by  a  purchaser  at  a  sheriff's  sale  to  re- 
strain the  officer  from  executing  a  deed  to  one  who  had  bought 
at  a  sale  founded  on  his  own  judgment,  void  for  want  of 
service,  as  disclosed  by  the  record  therein, 

(Penrose  v.  McKenzie,  116  Ind.  35  —  18  X.  E.  Rep.  3S4.) 

or  a  proceeding  by  motion  to  set  aside  a  judgment  upon  the 
ground  that  there  really  had  been  no  service  though  the 
record  shows  judgment  to  have  been  rendered  upon  proper 
service,  and  such  motion  is  filed  subsequent  to  the  time  limited 
by  statute, 

(Hanson  v.  Hanson,  20  Pac.  Rep.  736.) 

or  an  attack  upon  a  judgment  by  the  judgment  defendant 
showing  the  actual  want  of  notice  and  fraud  in  the  procure- 
ment of  the  judgment,  are  all  direct  attacks. 

(Thompson  v.  McCorkle,  136  Ind.  484  —  34  N.  E.  Rep.  813.) 

A  suit  by  a  ward  to  recover  land  sold  under  a  defective 
petition,  and  for  the  guardian's  failure  to  give  a  sale  bond 
as  required  by  the  statute, 

(Davidson  v.  Bates,  111  Ind.  391  —  12  X.  E.  Rep.  6^7;  McKeever  v. 
Ball,    71    Ind.   398.) 

or  a  suit  by  the  heirs  to  vacate  a  judgment  against  their  an- 
cestor, in  the  same  court, 

(Buchanan  v.  Bilger,  64  Tex.  5S9.) 

and  a  motion  by  a  purchaser  to  vacate  a  prior  judgment 
against  his  vendor  because  the  same  is  void  by  reason  of  in- 
sufficient constructive  service  of  process, 

(People  v.  Mullen,  65  Cal.  396  —  4  Pac.  Rep.  348.) 


COLLATERAL    AND    DIRECT    ATTACK    DISTINGUISHED.       379 

as  well  as  a  motion  by  a  non-resident  judgment  debtor  to 
set  aside  a  judgment  rendered  against  him  upon  published 
process  where  both  the  order  for  publication  and  a  sufficient 
affidavit  warranting  the  order  are  wanting, 

(People  v.  Pearson,  76  Cal.  400— IS  Pac.   Rep.   424.) 

and  a  purchaser's  refusal  at  a  succession  sale  to  comply  with 
the  terms  of  his  bid,  where  he  attacks  the  order  of  sale  as  void 
upon  its  face, 

Succession  of  Dumestre,  40  La.  Ann.  571 — 4  So.  Rep.  328.) 

are  all  direct  attacks  upon  such  proceedings. 

Collateral  Attack  Defined. 

§  427.  As  a  general  rule  a  judgment  or  other  judicial  pro- 
ceeding is  void  collaterally  only  when,  at  the  time  the  pro- 
ceedings were  had,  there  was  a  want  of  jurisdiction  over  the 
subject-matter  of  the  action,  or  of  the  person  of  the  defendant, 
and  such  inherent  infirmity  is  apparent  from  an  inspection 
of  the  record,  or  the  tribunal  wherein  the  proceedings  were 
had  was  not  legally  organized.  If  one  or  more  of  such  radical 
defects  incumber  the  record,  the  judgment,  order  or  decree, 
and  all  rights  and  titles  resting  thereon  are  complete  nullities, 
no  matter  if  the  purchaser  or  holder  thereof  is  one  for  value 
and  without  notice  or  not.  Nor  is  it  a  matter  of  the  slightest 
consequence  that  the  proceedings  occurred  in  a  court  of  the 
highest  dignity  in  the  commonwealth,  for  they  are  as  destitute 
of  legal  efficacy  as  if  they  had  taken  place  in  the  most  inferior 
court  known  to  the  law,  the  proceedings  are  coram  non 
judice  and  void. 

It  is  a  fundamental  rule  that  a  judicial  record  must  be 
tried  by  an  inspection  thereof; 

(Hersey  v.  Walsh.  38  Minn.  521  —  3S  N.  W.  Rep.  613;  Kingman  v. 
Paulsen,  126  Ind.  507  —  26  N.  E.  Rep.  393;  Trust  Co.  v.  Lumber  Co..  92 
Tenn.  126  —  21  S.  W.  Rep.  329:  Hughes  v.  Cummings,  7  Colo.  203  — 
2  Pae.  Rep.  289;  Phillips  v.  Lewis,  109  Tnd.  62  —  9  N".  E.  Rep.  395;  Ex 
parte  Bergman,  3  Wyo.  396  —  26  Pac  Rep.  914;  Kingsbury  v.  Powers. 
131  111.  1S2  — 22  N.  E.  Rep.  479;  Seott  v.  Crews.  72  Mo.  261;  Leedom 
v.  Lombaert,  80  Pa.  St.  381;  Welborn  v.  People.  76  111.  516;  Byram  v. 
McDowell,    15   Lea,   5S1.) 

and  accordingly,  when  it  is  attempted  to  deprive  such  record 
of  its  force  or  effect  by  overturning  or  impeaching  it  by  the 


380  VOID   JUDICIAL    AND    EXECUTION    SALES. 

use  of  evidence  extraneous  to  the  same  and  in  a  proceeding 
not  by  law  provided,  such  an  assault  is  collateral. 

(Morrill  v.  Morrill,  20  Ore.  96  —  25  Pac.  Rep.  362;  Browning  v.  Smith, 
139  Ind.  280  —  37  N.  E.  Rep.  540;  People  v.  Mullen,  65  Cal.  396  —  4 
Pac.  Rep.  348;  Cicero  Township  v.  Picken,  122  Ind.  2G0  —  23  N.  E.  Rep. 
763;  Harman  v.  Moore,  112  Ind.  221  —  13  N.  E.  Rep.  718;  Littleton  v. 
Smith,  119  Ind.  230  —  21  N.  E.  Rep.   886.) 

Instances  of  Collateral  Attack. 

§  428.  A  direct  proceeding  instituted  for  the  purpose  of 
impeaching  the  title  of  a  purchaser  other  than  a  party  to  the 
original  action,  for  intervening  errors,  is  clearly  as  collateral 
as  if  the  action  were  at  law  in  ejectment  for  the  recovery  of 
the  land. 

(Swift  v.  Yanaway,  153  111.  197  —  38  N.  E.  Rep.  589;  Hedges  v.  Mace, 
72  111.  472;  Moore  v.  Neil,  39  111.  256.) 

If  the  court  under  whose  judgment  or  decree  the  land  is 
sold  had  jurisdiction  of  the  subject-matter  and  the  parties, 
collateral  attack  upon  the  sale  will  not  lie  for  mere  errors  or 
irregularities,  for  until  reversed  on  appeal,  the  judgment  or 
decree  confers  the  authority  to  sell  and  transfer  the  title,  not- 
withstanding it  is  erroneous. 

(Lewis  v.  Morrow,  89  Mo.  174  —  1  S.  W.  Rep.  93;  Swift  v.  Yanaway, 
153  111.  197  —  38  X.  E.  Rep.  589;  Pearse  v.  Hill,  163  Mass.  493  —  40  N. 
E.  Rep.  765;  Cothran  v.  Knight,  47  S.  C.  243  —  25  S.  E.  Rep.  142; 
Lee  v.  Patten,   34  Ela.   149—15  So.   Rep.   775.) 

But  if  on  the  contrary  the  record  affirmatively  shows  that 
the  court  was  without  jurisdiction  to  proceed  in  the  particular 
action  in  which  the  judgment  was  pronounced,  and  there  is 
no  direct  finding  of  jurisdiction  in  the  judgment,  it  may  be 
contradicted  or  impeached  collaterally,  despite  the  rule  that 
the  judgment  of  a  court  of  general  jurisdiction  imports  ab- 
solute verity. 

(Jewett  v.  Land  Co.,  64  Minn.  531  —  67  N.  W.  Rep.  639;  Meyer  v. 
Kuhn,  25  U.  S.  App.  174  —  65  Fed.  Rep.  705;  Barber  v.  Morris,  37  Minn. 
194—33  N.  W.  Rep.  559;  Clark  v.  Thompson,  47  111.  25  —  95  Am.  Dec. 

457.) 

Notwithstanding  a  third  person  having  acquired  interests 
in  the  property  without  notice  of  the  fraudulent  character 
of  the  judgment  is  permitted  to  assail  the  same  and  the  pro- 
ceedings thereunder  for  fraud  in  a  collateral  proceeding, 


PRESUMPTIONS    AS   TO   JURISDICTION.  :;s' 

(Dunlap   v.    Byers,    110  Mich.    109-67    X.    W.    Rep.    .0.7:    Building 
Association  v.  Harden,  92  Va.  201       23  S.  E.   Rep.  285.) 

either  a  party  nor  his  privies  can  obtain  relief  upon  such 
grounds  in  a  collateral  action  by  bringing  forward  matters 

extraneous  to  the  record. 

^       •  ,     , ..  i  t    i    iao        •'  \    E    Reo    899:  Steel  Works 
fComeevs  v.  Emerick,  L34  1ml.  L48        ...  w.  i-       l 
JSX-,  66  Mich.  489-33  N.  W.  Bep.  ^erman;  Moore   U2 
Ind.  221-13  N.E.   Rep.  718;  Col v.  Baer       4   tad.  875-    -M  N    * 

Rep.  920;  Trust  Co.  v.  Luxnher  Co.,  92  Tenn.   126-     ■     ^-  ';    '— 

-o        f  ,■    Wolf    70  III    76;   Swift  v.  Yanaway,   153  111.  197       3b  in. 
Barnet  v.  Wolf,   ro  1    .  w      Botsford 

Rep.  5S9;  Lantz  v.  Maffett,  iw  ina. 

v.  O'Conner,  57   111.  72;   Finch  v.  Sink.  46  111.  169.) 

PRESUMPTIONS  AS  TO  JURISDICTION. 

Judgments  of  Courts  of  General  Jurisdiction. 

8  429    Upon  collateral  attack  the  presumption  of  juris- 
diction prevails  in  case  the  record  is  silent,  in  an  adjudication 
t  an  ordinary  proceeding  of  a  domestic  court  ot  -or,    of 
general  jurisdiction.     Hence,  if  there  is  no  affirmative  show 
L  of  service  of  summons  or  appearance,  it  will  be  presumed 
on  collateral  inquiry  that  the  rendition  of  the  judgment  was 
preceded  bv  the  acquisition  of  jurisdiction  over  the  person 
of  the  defendant,  when  the  court  wherein  the  proceedings 
are  taken  is  one  of  general  and  not  limited  or  inferior  juris- 
diction     This  presumption  prevails  until  want  of  jurisdiction 
is  affirmatively  shown,  or  unless  it  affirmatively  appears  upon 
the  face  of  the  record  that  jurisdiction  is  wanting. 

(Williams  v.  Haynes,  77  Tex.  283-!,  S.   ^J^^^Z^ 
Brown,  87  Ala.  533-6  So.  Rep.  354;  Bank  v.  1-  -  °£  "« 

07  Pac    Rep.  705;   Robinson  v.  Allison.  97  Ala.  596-12  So     h. ;    . 
L^onv   Teel    82  Va.  690;  Jones  v.  Edwards,  7s  Ky.  6;  Gudford  v. 
LoT^Tes  ™;  Wingal*  v.  Haywood,  40  X.  H.  437;  Pettus  v   Mc- 
cLnahan.  52  Ala.  55;  Crane  v.  Kinnner,  77   Ind.  215;   Morgan  V.   Bur- 
nett,  18  Ohio,  535.) 

The  record  of  a  cause  in  such  a  court  being  silent  as  to  the 
manner  of  acquiring  jurisdiction  it  is  conclusively  presumed 
upon  collateral  attack  that  jurisdiction  has  vested,  and  ex- 
trinsic evidence  is  inadmissible  to  rebut  such  presumption. 

(Davis  v.  Hudson.  29  Minn.  27-1,    X.   W.   ^™--™£££ 

v    West.  100  Mo.  309-13  S.  W.  Rep.  674;  Suns  v.  Cay.  109  Ind.  oOl 


382  YOID    JUDICIAL    AND    EXECUTION    SALES. 

9  N.  E.  Eep.  120;  St.  Louis  v.  Lanigan,  97  Mo.  175  —  10  S.  W.  Rep.  475; 
Bruckman  v.  Taussig,  7  Colo.  501  —  5  Pac.  Rep.  152;  Schad  v.  Sharp, 
95  Mo.  573  —  8  S.  W.  Rep.  549;  Tennell  v.  Breedlove,  54  Tex.  540; 
Hill  v.  Woodward,  78  Va.  765;  Coit  v.  Haven,  30  Conn.  190  —  79  Am. 
Dee.  244;  Mallett  v.  Mining  Co.,  1  New  188  —  90  Am.  Dee.  484;  Kenney 
V.  finer.  13  111.  432  —  54  Am.  Dec.  439;  Murchison  v.  White,  54  Tex. 
7S;  Pope  v.  Harrison,  16  Lea,  82;  Swearengen  v.  Gulick,  67  111.  208; 
Fitch  v.  Boyer,  51  Tex.  336.) 

Insufficient  Service  Appearing. 

§  430.  In  case  of  collateral  attack  upon  a  judgment  and 
proceedings  thereunder  where  the  service  appearing  in  the 
record  of  a  superior  court  is  made  in  a  certain  manner  and 
this  is  not  sufficient  to  confer  jurisdiction,  there  mil  be  no 
presumption  that  some  other  and  valid  service  was  made 
upon  the  defendant  in  some  other  way,  the  presumption  in 
support  of  the  recital  of  jurisdiction  being  consistent  with 
the  service  shown  by  the  record  to  have  been  made,  and  not 
against  it. 

(Law  v.  Grommes,  158  111.  492  —  41  N.  E.  Rep.  10S0;  Barber  v.  Morris. 
37  Minn.  194  —  33  X.  W.  Rep.  559;  Mickel  v.  Hicks,  19  Kan.  578  —  27 
Am.  Rep.  161;  Clark  v.  Thompson.  47  111.  25  —  95  Am.  Dec.  457;  Bots- 
ford   v.   O'Connor.    57   111.   72.) 

Presumption  in  Crse  of  Constructive  Service. 

§  431.  The  federal  supreme  court  held  a  judgment  void 
collaterall v  which  was  rendered  against  an  infant  upon  service 
by  publication,  the  statute  in  such  case  requiring  that  the 
court  be  satisfied  by  affidavit  of  the  non-residence  as  well  as 
to  a  cause  of  action,  but  the  record,  while  showing  an  order 
for  publication  and  making  of  the  publiction,  was  silent  as 
to  the  manner  in  which  the  court  became  satisfied  either  of 
the  non-residence  or  the  existence  of  a  cause  of  action. 

(Galpin  v.   Page,   IS   Wall.    350.) 

And  a  substantially  similar  strict  rule  obtains  in  some 
states  where  it  is  held  that  whenever  a  mode  of  acquiring 
jurisdiction  not  in  accordance  with  the  general  course  of  the 
common  law  has  been  prescribed  by  statute,  such  mode  must 
be  strictly  pursued  and  the  facts  necessary  to  confer  juris- 
diction must  affirmatively  appear  upon  the  face  of  the  record, 
as  no  presumptions  are  indulged  in  to  sustain  the  judgment. 

(Real  Estate  Co.  v.  Hendrix,  28  Ore.  4S5  —  42  Pac.  Rep.  514;  Mc- 
Cracken  v.  Flanagan,  127  X.  Y.  493  —  28  X.  E.  Rep.  385  j   Harness  v. 


PBESTJMPTIONS   AS   TO   JURISDICTION.  583 

Cravens,  126  Mo.  233  —  28  S.  W.  Rep.  971:  Carnes  v.  Mitchell.  82  Iowa, 
poi  —  4S  X.  W.  Pep.  941;  Bradley  v.  Jamison,  46  Iowa,  68;  Palmer  v. 
McMaster,    8    Mont.    1S6  — 19    Pac.    Pep.    5S5.) 

Presumption  of  Jurisdiction  as  to  Inferior  Courts. 

§  432.  It  is  a  settled  principle  of  jurisprudence  that  where 
the  record  of  an  inferior  court  does  not  affirmatively  show 
that  jurisdiction  has  been  acquired,  by  setting  forth  the 
jurisdictional  facts  which  the  law  directs  shall  be  shown,  the 
proceedings,  including  the  sale  thereunder,  are  coram  non 
jifdicr  and  void,  and  subject  to  impeachment  in  a  collateral 
proceeding. 

(Eltzroth  v.  Ryan,  S9  Cal.  135  —  26  Pac.  Rep.  647;  Levy  v.  Lumber 
Co.,  51  Ark.  317  —  11  S.  W.  Rep.  2S4;  Smith  v.  Clausmeier.  136  Ind. 
105  —  35  N.  E.  Rep.  904;  Leonard  v.  Sparks,  117  Mo.  103  —  22  S.  W. 
Rep.  S99 ;  Fahey  v.  Mottu,  67  Md.  250  — 10  Atl.  Rep.  68 ;  Moore  v. 
Hoskins,  66  Miss.  49G  — 6  So.  Rep.  500;  Emery  v.  Royal,  117  Ind.  299  — 
20  X.  E.  Rep.  150;  Bolivar  v.  Coleman,  71  Miss.  832  —  15  So.  Rep.  107; 
Jones  v.  Hunt,  90  Wis.  199  —  63  X.  W.  Rep.  81;  Agar  v.  Tibbits,  56 
Hun,  272  —  9  X.  Y.  Supp.  591;  Newman  v.  Manning,  89  Ind.  422; 
Thomas  v.  Robinson,  3  Wend.  267;  Visart  v.  Bush,  46  Ark.  153;  Case 
V.  Hannahs,  2  Kan.  490;  Rossiter  v.  Peck,  3  Gray,  538;  Wight  v.  Warner, 
1  Doug.  384;  Ex  parte  Kearney,  55  Cal.  212;  Goulding  v.  Clark,  34  X. 
H.    148.) 

But  when  jurisdiction  has  once  been  shown  like  presump- 
tions obtain  as  to  the  regularity  of  its  exercise  as  are  ac- 
corded to  judgments  and  proceedings  of  courts  of  general  and 
superior  jurisdiction. 

(Bewley  v.  Graves.  17  Ore.  274  —  20  Pac.  Rep.  322:  Pursley  v.  Hayes. 
22  Iowa,  11  —92  Am.  Dec.  350;  Turner  v.  Conkey.  132  Ind.  24S  —  31  X. 
E.  Rep.  777;  Heck  v.  Martin,  75  Tex.  469  —  13  S.  W.  Rep.  51;  Tucker 
v.  Harris.  13  Ga.  1  —  58  Am.  Dec.  4S8;  Fowler  v.  Jenkins,  2S  Pa.  St. 
17G  —  81  Am.  Dec.  427;  Railway  Co.  v.  Chamberlain.  84  111.  333;  Corn- 
stock  v.  Crawford,  3  Wall.  396;  Board  v.  Markel,  46  Ind.  9(3;  Little  v. 
Sinnet.  7  Iowa.  324;  Visart  v.  Bush,  46  Ark.  153;  Cauldwell  v.  Curry, 
93  Ind.  303;  Leonard  v.  Sparks,  117  Mo.  103—22  S.  W.  Rep.  899; 
Smith  v.  Clausmeier,  136  Ind.  105  —  35  N.  E.  Rep.  904;  Levy  v.  Lumber 
Co.,   51  Ark.  317  —  11  S.  W.   Rep.  284.) 

Presumptions  as  to  Proceedings  of  Probate  Courts. 

§  433.  Courts  of  probate  are  in  a  few  states  regarded  as 
of  special  and  limited  and <  inferior  jurisdiction,  and  where 
this  rule  prevails  it  is  incumbent  upon  him  who  asserts  title 
under  their  adjudications  and  proceedings  to  show  affirma- 


384  VOID   JUDICIAL    AND    EXECUTION    SALES. 

tively  that  all  steps  essential  to  confer  jurisdiction  have  been 
taken,  no  presumptions  in  aid  of  the  proceedings  being  in- 
dulged. 

(Ethel  v.  Nichols,  1  Idaho,  741;  Wattela  v.  Hyde,  9  Conn.  10;  In  re 
Hawley,   104  N.  Y.  250  —  10  N.   E.   Rep.  352.) 

But  pursuant  to  a  preponderance  of  judicial  authority  these 
tribunals,  by  whatever  name  designated,  are  considered  to 
be  of  limited  jurisdiction  though  not  inferior  courts,  and  in 
the  lawful  exercise  of  such  jurisdiction  with  which  they  are 
invested  by  law,  all  presumptions  in  favor  of  jurisdiction  ap- 
plicable to  courts  of  general  jurisdiction  are  accorded  to  them. 

(Sherwood  v.  Baker,  105  Mo.  472  —  16  S.  W.  Rep.  938;  Pike  v.  Chi- 
cago, 155  111.  656  —  40  N.  E.  Rep.  567;  Masters  v.  Bienker,  87  Ky.  1  — 
7  S.  W.  Rep.  158;  Sullivan  v.  Rapp,  86  Ala.  433  —  5  So.  Rep.  746; 
Davis  v.  Hudson,  29  Minn.  27  —  11  N.  W.  Rep.  136;  People  v.  Seelye, 
146  111.  189  —  32  N.  E.  Rep.  458;  Currie  v.  Franklin,  51  Ark.  33S  —  11 
S.  W.  Rep.  477;  Winter  v.  London,  99  Ala.  263  —  12  So.  Rep.  438; 
Succession  of  Bellande,  41  La.  Ann.  491  —  6  So.  Rep.  505;  Mills  v. 
Herndon,  77  Tex.  89  —  13  S.  W.  Rep.  854;  Matson  v.  Swensen,  5  S. 
Dak.  191  —  58  N.  W.  Rep.  570;  Waters  v.  Stickney,  12  Allen,  1  —  90 
Am.  Dec.  122;  Kimball  v.  Fisk,  39  N.  H.  110  —  75  Am.  Dec.  213;  Bush 
v.  Lindsay,  24  Ga.  245  —  71  Am.  Dec.  117;  Snyder's  Appeal,  36  Pa.  St. 
166  —  78  Am.  Dec.  372;  Bostwick  v.  Skinner.  80  111.  147;  Sever  v.  Rus- 
sell, 4  Cush.  513  —  50  Am.  Dec.  811;  Camden  v.  Plain,  91  Mo.  117  — 
4  S.  W.  Rep.  86;  Kelly  v.  Morell,  29  Fed.  Rep.  736;  Reid  v.  Morton,  119 
111.  118  —  6  N.  E.  Rep.  414.) 

WHEN     COLLATERAL    IMPEACHMENT     PERMIS- 
SIBLE. 

In  Case  of  Want  of  Jurisdiction  to  Render  Judgment. 

§  434.  It  is  a  settled  principle  of  jurisprudence  that  if 
jurisdiction  over  the  subject-matter  or  person  is  wanting,  and 
the  record  discloses  this  infirmity,  the  proceedings  are  void 
in  a  collateral  sense,  conferring  no  rights  upon  any  one  and 
depriving  no  one  of  title,  right  or  interest.  Being  nullities 
such  proceedings  can  be  no  justification  to  him  who  seeks  their 
enforcement  or  who  asserts  either  right,  title  or  authority 
thereunder,  and  when  collaterally  called  in  question  must 
fall  to  the  ground.  The  acts  of  a  court  done  in  the  absence  of 
authority,  on  principle,  can  be  of  no  higher  efficacy  than  the 
unauthorized  acts  of  any  other  person  or  tribunal,  and  when 


WHEN    COLLATERAL    IMPEACHMENT    PERMISSIBLE.  385 

apparent  from  the  record  must  fall  as  void.  But  on  the  other 
hand,  when  jurisdiction  has  vested,  or  when  the  record  does 
not  disclose  the  want  of  it,  any  irregularity  in  the  action  of 
the  court  or  functionary,  no  matter  how  gross,  will  not  render 
the  proceedings  void  collaterally. 

(Morrill  v.  Morrill,  20  Ore.  96  —  25  Pac.  Rep.  362;  Town  of  Wayne 
v.  Caldwell,  1  S.  Dak.  483  —  47  N.  W.  Rep.  547;  Wall  v.  Wall.  123  Pa. 
St.  545  —  16  Atl.  Rep.  598;  Dyer  v.  Leach,  91  Cal.  191— L7  Pac.  Rep. 
598;  Kingman  v.  Paulson,  126  Ind.  507  —  26  N.  E.  Rep.  "93;  Smith  v. 
Hess,  91  Ind.  424;  Manson  v.  Duncanson,  166  U.  S.  533  — 17  Sap.  Ct. 
Rep.  647.) 

By  Third  Parties. 

§  435.  According  to  a  general  rule  parties  and  their  privies 
are  precluded  from  impeaching  judicial  proceedings  for  fraud, 
when  the  record  does  not  affirmatively  show  it,  yet  this  rule 
does  not  operate  against  a  third  party  who  may  avail  himself 
of  the  privilege  of  collaterally  impeaching  such  judgment 
and  proceedings,  when  the  same  were  obtained  by  fraud  and 
collusion  of  the  parties  to  it  for  the  purpose  of  defrauding 
him,  and  this  because  he  has  no  standing  to  appeal  from  the 
judgment  or  require  its  vacation  or  reversal,  such  a  judgment 
or  decree,  is  as  to  such  third  party  coram  nan  judice  and 
void. 

(Sager  v.  Mead,  164  Pa.  St.  125  —  30  Atl.  Rep.  284;  Morrill  v.  Morrill, 
20  Ore.  96  —  25  Pac.  Rep.  362;  Ogle  v.  Baker,  137  Pa.  St.  378  —  20  Atl. 
Rep.  998.) 

And  on  the  plainest  of  elementary  principles,  no  one  can 
be  concluded  by  a  judicial  sale  under  proceedings  to  which 
he  is  not  a  party; 

(Telegraph  Co.  v.  Trust  Co.,  147  U.  S.  431  —  13  Sup.  Ct.  Rep.  396.) 

but  no  issue  as  to  the  character  of  a  judicial  sale  can  be  raised 
by  one  who,  neither  before  nor  after  the  sale,  had  any  interest 
in  the  property,  as  his  interests  must  have  boon  affected  in 
order  to  give  him  a  standing  to  question  the  sale. 

(In  re  Von  Hoven's  Succession,  48  La.  Ann.  620  —  19  So.  Rep.  766.) 

If  the  interest  of  a  third  party  in  the  property  be  con- 
tingent, or  an  executory  devise,  it  is  bound  by  judicial  pro- 
ceedings affecting  the  land,  in  case  the  court  has  before  it  all 
25 


386  VOID    JUDICIAL    AND    EXECUTION    SALES. 

parties  that  can  be  brought  before  it  and  in  whom  the  present 
estate  of  inheritance  is  vested,  in  the  absence  of  fraud. 

(Miller  v.  Railway  Co.,  132  U.  S.  662  —  10  Sup.   Ct.   Rep.   206.) 
I 

The  property  of  a  third  person  sold  under  the  coercive 
process  of  the  law  against  one  who  is  not  the  owner  will  not 
pass  to  the  purchaser  though  it  may  have  been  levied  upon 
while  in  the  possession  of  the  judgment  debtor.  The  pur- 
chaser not  only  acquires  no  title  to  the  same,  but  if  he  as- 
sumes to  exercise  dominion  over  it,  or  deal  with  it  as  the 
owner  by  converting  the  same  to  his  own  use,  he  will  be  liable 
in  conversion.  The  principle  is  fundamental  that  the  sale 
of  property  under  an  execution  passes  only  the  right  or  title 
of  the  judgment  debtor,  and  if  he  has  none  then  as  a  necessary 
consequence  none  will  be  passed  by  the  sale. 

(Heberling  v.  Japger,  47  Minn.  70  —  49  X.  W.  Rep.  396;  Jamison  v. 
Hendricks,  2  Blackf.  94  —  IS  Am.  Dec.  131;  Case  v.  Hart,  11  Ohio,  364 
—  38  Am.  Dec.  735;  Coombs  v.  Gordon.  59  Me.  Ill;  Bryant  v.  Whitcher, 
52  N.  II.  158;  Champney  v.  Smith,  15  Gray,  512;  Lewark  v.  Carter,  117 
Ind.  206  —  20  N.  E.  Rep.  119;  Bank  v.  Bank,  45  Mo.  513  —  100  Am. 
Dec.   388.) 

SALE  VACATED  BY  DIRECT  PROCEEDING. 

"When  by  Motion  Must  be  Within  a  Seasonable  Time. 

§  436.  Manifestly,  the  lapse  of  time  ordinarily  can  add 
nothing  to  the  validity  of  an  execution  or  judicial  sale  which 
is  void,  but  a  different  question  arises  where  such  sale  is 
merely  voidable  and  not  void.  Accordingly,  it  is  generally 
considered  that  a  defendant  seeking  to  have  the  sale  of  his 
property  under  execution  vacated  for  error  or  irregularity 
must  interpose  his  motion  to  that  effect  within  a  reasonable 
time  after  the  sale.  In  the  states  where  sales  under  execution 
are  not  required  to  be  confirmed  by  the  court,  and  this  in- 
cludes a  large  majority  of  them,  and  where  the  right  of  re- 
demption is  a  provision  of  statute,  such  a  reasonable  time  is 
limited  to  the  expiration  of  the  period  of  redemption,  and 
if  not  moved  against  before  that  time  the  right  to  urge  ob- 
jections to  the  sale  is  usually  waived. 

(Power  v.  Larabee,  3  N.  Dak.  502  —  57  N.  W.  Rep.  789;  Lurton  v. 
Rodgers,  139  111.  554  —  29  N.  E.  Rep.  866;  Fletcher  v.  McGill,  110  Ind. 
.395  —  10  N.   E.   Rep.    651;    Abbott  v.   Peck,    35  Minn.    499  —  29   N.   W. 


SALE    VACATED    BY    DIRECT   PROCEEDING.  387 

Eep.  194;  Raymond  v.  Pauli,  21  Wis.  531;  Bank  v.  Fair  Association, 
2  S.  Dak.  145  —  48  X.  W.  Rep.  852;  Raymond  v.  Holburn,  23  Wis.  57; 
Griswold  \.  Stoughton,  :.'  Ore.  61;    Vigoureux  v.  Murphy,  54  Cal.  346; 

Love  v.  Cherry,  24  Iowa,  210.) 

Where  execution  sales  are  required  by  statute  to  be  con- 
firmed, the  same  rule  then  applies  to  them  as  is  applicable 
to  judicial  sales,  namely,  that  in  the  absence  of  fraud,  the 
order  of  confirmation  cures  all  defects  and  irregularities  in 
the  sale,  and  the  purchaser  acquires  all  the  title  of  the  judg- 
ment debtor.  Objections  to  the  sale  for  errors  and  irregu- 
larities not  of  a  jurisdictional  nature  must  be  urged  before 
confirmation  or  else  it  is  too  late. 

(Watson  v.  Tromble,  33  Neb.  450  —  50  X.  W.  Rep.  331;  Neligh  v. 
Keene,  16  Neb.  407  —  20  N.  W.  Rep.  277:  Wilcox  v.  Raben,  25  Neb.  368 
X.  W.  Rep.  844;  Real  Estate  Co.  v.  Hendrix,  2S  Ore.  485  —  42 
Pac.    Rep.    514.) 

It  has  been  held  that  where  the  execution  plaintiff  himself 
is  the  purchaser,  the  court  may  vacate  the  sale  even  after 
the  expiration  of  the  period  of  redemption  where  a  showing 
is  made  sufficient  to  excuse  the  delay,  as  such  a  purchaser  is 
chargeable  with  notice  of  .all  errors  and  irregularities  in  the 
sale. 

(Branch  v.  Foust,  130  Ind.  538  —  30  N.  E.  Rep.  631;  Fletcher  v.  Mc- 
Gill,  110  Ind.  395  —  10  N.  E.  Rep.  651;  Carnaban  v.  Yerkes,  87  Ind.  62; 
Land  Co.  v.  Walker,  78  Iowa,  476  —  43  N.  W.  Rep.  294;  Richey  v. 
Merritt,  108  Ind.  347  —  9  N.  E.  Rep.  368;  Bean  v.  Holiendorfer,  2  S.  W. 
Rep.   556.) 

By  Suit  in  Equity. 

§  437.  If  the  period  of  redemption  has  gone  by  and  no 
motion  was  interposed  to  set  aside  the  sale  for  irregularities, 
the  defendant  may  yet  defeat  the  sale  by  a  suit  in  equity  in- 
stituted for  the  purpose  of  being  permitted  to  redeem  if  a 
sufficient  excuse  is  shown  for  his  delay  in  this  regard. 

(Tice  v.  Russell,  43  Minn.  66  —  44  N.  W.  Rep.  886;  Campbell  v. 
Leonard,  132  111.  232  —  24  N.  E.  Rep.  65;  Graffam  v.  Burgess,  117  U.  S. 
180  —  6  Sup.  Ct.  Rep.  686;  Power  v.  Larabee,  3  N.  Dak.  502  —  57  X.  W. 
Rep.  789.) 

Irregularities  of  sufficient  gravity  to  warrant  the  court  in 
vacating  the  sale  may  be  cured  by  acquiescence  on  the  part 
of  the  judgment  defendant,  and  he  will  thereafter  not  be 
heard  in  opposition  to  the  sale; 


388  VOID   JUDICIAL    AND    EXECUTION    SALES. 

(Fletcher  v.  McGill,  110  Ind.  395  —  10  N.  E.  Rep.  651;  Tooley  v. 
Gridley,  3  S.  &  M.  493  —  41  Am.  Dec.  628;  Maple  v.  Kusart,  53  Pa.  St. 
348  —  91  Am.  Dee.  214;  Crawford  v.  Ginn,  35  Iowa,  543;  Rowe  v.  Major. 
92  Ind.  206;  McDonnell  v.  People,  71  111.  481;  Meehan  v.  Edwards,  92 
Ky.  574  —  18  S.  W.  Rep.  519.) 

yet  where  there  is  gross  inadequacy  of  price  coupled  with 
fraud  or  material  irregularity,  sales  have  been  vacated  in 
equity,  notwithstanding  the  application  was  made  subsequent 
to  the  expiration  of  the  statutory  period  of  redemption,  if  the 
applicant  is  not  estopped  by  his  own  laches. 

(Ponder  v.  Cheeves,  90  Ala.  117  —  7  So.  Rep.  512;  Young  v.  Schroeder, 
10  Utah,  155  —  37  Pac.  Rep.  252;  Parker  v.  Shannon,  137  111.  376  —  27 
N.  E.  Rep.  525;  Graffam  v.  Burgess,  117  U.  S.  180  —  6  Sup.  Ct.  Rep. 
686;  Pate  v.  Hinson,  104  Ala.  599  —  16  So.  Rep.  527.) 

Ordinarily  an  application  to  set  aside  an  execution  sale  on 
account  of  irregularities  in  the  issuance  of  the  writ,  as  because 
issued  upon  a  dormant  judgment,  should  be  promptly  made, 
,and  in  the  court  out  of  which  the  writ  emanated.  In  the 
absence  of  a  showing  of  accident,  surprise,  mistake  or  fraud, 
or  some  circumstance  affecting  the  sale  itself,  equity  will  not 
interpose  to  vacate  a  sale. 

(Gardner  v.  Railway  Co.,  102  Ala.  635  —  15  So.  Rep.  271;  McCall  v. 
Rickarby,  85  Ala.  152  —  4  So.  Rep.  414;  Bank  v.  Spencer,  18  N.  Y.  150.) 

INSTANCES     OF     EXECUTION     AND     JUDICIAL 
SALES  VOID  COLLATERALLY. 

If  Jurisdiction  is  Wanting  Sale  Void. 

§  438.  If  the  court  is  one  of  competent  jurisdiction  and 
had  regularly  acquired  jurisdiction  to  render  the  judgment, 
and  the  sale  has  taken  place  under  a  valid  execution  issued 
thereon,  the  sale  by  the  authorized  officer  thereunder  can 
not  be  void  by  reason  of  any  irregularity  that  may  occur  in 
the  conduct  of  the  sale.  But  where  there  was  a  lack  of  juris- 
diction, either  of  the  subject-matter  or  person  of  the  defend- 
ant, and  this  is  apparent  upon  the  face  of  the  record,  the  pro- 
ceedings of  sale  are  void  collaterally. 

(Trust  Co.  v.  Railway  Co.,  139  U.  S.  137  —  11  Sup.  Ct.  Rep.  512; 
Graff  v.  Louis,  71  Fed.  Rep.  591;  Botsford  v.  O'Conner,  57  111.  72; 
Alexander  v.  Mortgage  Co..  47  Fed.  Rep.  131;  Miller  v.  Handy.  40  111. 
448;  State  v.  Wear,  46  S.  W.  Rep.  1099;  Bank  v.  Hanna,  12  Ind.  App.  240 


INSTANCES  OF  SALES  VOID  COLLATERALLY.       389 

—  39  N.  E.  Rep.  1054;    Pearse  v.  Hill,  163  Mass.  493  —  40  X.  E.  Rep. 
765;  Railway  Co.  v.  Harmless,  124  Ind.  25  —  24  N.  E.  Rep.  369.) 

Even  when  the  court  is  one  of  general  jurisdiction  and 
finds  that  it  has  jurisdiction,  if  the  record  therein  sufficiently 
shows  the  contrary  and  therefore  impeaches  the  finding,  a 
sale  under  execution  upon  such  judgment  can  be  questioned 
in  a  collateral  proceeding,  notwithstanding  the  presumption 
accorded  such  judgments,  the  finding  itself  being  impeached 
by  the  affirmative  disclosures  in  the  record. 

(Goodkind  v.  Bartlett,  153  111.  419  —  38  X.  E.  Rep.  1045;  Swift  V. 
Yanaway.  153  111.  197  —  38  N.  E.  Rep.  589;  Law  v.  Grommes,  15S  111. 
492  —  41  X.  E.  Rep.  10S0;  Barber  v.  Morris,  37  Minn.  194  —  33  N.  W. 
Rep.  559;  Stanley  v.  Stanley.  35  S.  C.  94  —  14  S.  E.  Rep.  675;  Osgood 
v.  Blackinore,  59  111.  261.) 

A  sale  under  execution  issued  upon  a  judgment  by  con- 
fession in  a  county  court,  where  there  has  been  non-compli- 
ance  with  the  provisions  of  the  statute  in  obtaining  the  judg- 
ment is  void, 

(Howell  v.  Mfg.  Co..  32  Neb.   627  —  49  X.  W.  Rep.  704.) 

and  so  is  a  judicial  sale  made  in  violation  of  an  injunction, 
(Stevens  v.  Bank,  144  N.  Y.  50  —  39  X.  E.  Rep.  68.) 

as  well  as  an  execution  sale  based  upon  a  simple  money  judg- 
ment, execution  issuing  subsequent  to  the  death  of  the  sole 
defendant,  against  his  executrix. 
(Bynum  v.  Govan.  29  S.  W.  Rep.   1119.) 

And  a  sale  made  under  an  execution  emanating  from  a 
judgment  of  a  justice's  court  which  was  not  docketed  until 
after  it  had  been  barred  by  the  statute  of  limitations. 

(Cowen  v.  Withrow,  114  X.  C.  5S8  — 19  S.  E.  Rep.  645.) 

Sales  Founded  upon  Satisfied  Judgments. 

§  439.  Upon  the  plainest  of  elementary  principles  and  in 
accordance  with  reason,  a  sale  under  an  execution  based  upon 
a  satisfied  judgment,  whether  satisfaction  is  shown  by  the 
record  or  not,  is  absolutely  void  and  may  be  impeached  in  a 
collateral  action.  There  being  no  judgment,  by  reason  of  its 
payment,  there  is  no  warrant  in  law  for  the  issuance  of  any 
writ,  and  the  purchaser  thereunder  can  acquire  no  rights 
upon  indisputable  and  universal  principles. 


390  VOID   JUDICIAL    AND    EXECUTION    RALES. 

(Boos  v.  Morgan,  130  Ind.  305  —  30  X.  E.  Rep.  141;  Soukup  v.  In- 
vestment Co.,  S4  Iowa.  44S  —  51  X.  W.  Rep.  167;  Shafer  v.  McCrackin, 
90  Iowa,  578  —  58  X.  W.  Rep.  910:  Bullard  v.  McArdle,  98  Cal.  355  — 
33  Pac.  Rep.  193;  Griffin  v.  Lacourse,  31  Fla.  125  —  12  So.  Rep.  665; 
Benton  v.  Hatch.  122  X.  Y.  320  —  25  X.  E.  Rep.  4S6;  Chapin  v.  Mc- 
Laren, 105  Ind.  563  —  5  X.  E.  Rep.  6S8;  Terry  V.  O'Xeal,  71  Tex.  592  — 
9  S.  W.  Rep.  673;  Huber  v.  Pickler,  94  Mo.  3S2  — 7  S.  W.  Rep.  427.) 

Land  Sold  not  Embraced  in  the  Petition. 

§  440.  In  Kentucky,  Massachusetts  and  California  it  is 
held  that  description  of  the  property  sought  to  be  sold  in  a 
judicial  sale  must  be  contained  in  the  petition  in  order  to 
confer  jurisdiction  to  order  the  sale, 

(Blaekwell  v.  Townsend,  91  Ky.  609  —  16  S.  W.  Rep.  587;  Yerry  V. 
McClellan,  6  Gray,  535  —  66  Am.  Dee,  423;  Townsend  v.  Gordon,  19 
Cal.  188.) 

while  in  Missouri  such  a  defect  did  not  make  the  sale  void 
collaterally  after  confirmation  and  deed  reciting  the  order  of 
sale,  confirmation  and  appraisement. 

(Bray  v.  Adams,  114  Mo.  4S6  —  21  S.  W.  Rep.  853.) 

Where  the  statute  required  that  the  petition  of  the  ad- 
ministrator to  sell  lands  of  the  estate  shall  describe  all  of  the 
lands  owned  by  the  decedent  as  well  as  the  value  and  con- 
dition of  each  description,  a  sale  founded  upon  a  petition 
wherein  the  provision  for  description  was  met  by  a  reference 
to  the  inventory  describing  six  parcels,  two  of  which  being 
void  for  uncertainty,  though  the  property  sold  was  correctly 
described,  the  sale  was  held  void  collaterally  because  all  the 
tracts  were  not  properly  described. 

(Wilson  v.  Hastings,  66  Cal.  243  —  5  Pac.  Rep.   702.) 

Petition  for  Order  or  License  Fatally  Defective. 

§  441.  In  some  states  probate  sales  of  real  estate,  though 
made  in  the  general  course  of  administration,  are  considered 
as  distinct  and  independent  proceedings,  of  which  the  petition 
is  the  commencement  and  the  order  of  sale  the  judgment,  and 
the  jurisdiction  of  the  court  is  purely  statutory,  being  only 
conferred  upon  the  presentation  of  a  petition  disclosing  the 
existence  of  a  state  of  facts  upon  which  the  court  is  authorized 
to  order  a  sale.  Jurisdiction  must  affirmatively  appear  from 
the  record  and  will  not  be  presumed  from  the  order  of  sale, 
and  if  the  petition  fails  to  disclose  the  essential  jurisdictional 


INSTANCES    OF    SALES    VOID    COLLATERALLY.  391 

facts,  such  as  an  averment  that  there  are  debts,  the  decree  or 
order  and  sale  are  void  and  subject  to  collateral  impeachment. 
(Cotton  v.  Holloway,  96  Ala.  544—  12  So.  Rep.  172;  Lyons  v.  .Mr- 
Curdy,  90  Ala.  497  —  8  So.  Rep.  52;  Wright  v.  Edwards,  10  Ore.  29S; 
Kobertson  v.  Bradford,  70  Ala.  385;  Tyson  v.  Brown,  64  Ala.  244.) 

But  in  Minnesota  it  is  held  that  the  administration  of  the 
estate  of  a  decedent  is  but  one  indivisible  judicial  proceeding 
from  the  appointment  to  the  discharge  of  the  administrator, 
and  that  the  petition  to  sell  is  not  a  separate  and  independent 
proceeding  or  action,  but  simply  a  proceeding  in  the  nature 
of  a  motion  in  a  pending  cause,  and  manifestly  no  want  of 
either  form  or  substance  is  sufficient  to  nullify  the  sale,  as 
jurisdiction  is  not  dependent  upon  the  sufficiency  of  the  aver- 
ments of  the  petition  to  sell,  and  a  sale  under  an  order  which 
is  based  upon  a  petition  thus  defective  or  wholly  wanting,  can 
not,  on  principle,  be  collaterally  attacked,  if  all  of  the  essen- 
tials of  the  curative  statute  exist. 

(Culver  v.  Hardenbaugh,  37  Minn.  225  —  33  NT.  W.  Rep.  792;  Rum- 
rill  v.  Bank,  2S  Minn.  202  —  9  N.  W.  Rep.   731.) 

In  a  case  in  Alabama  the  petition  of  the  administrator  to 
sell  land  disclosed  the  existence  of  a  will  but  did  not  aver 
that  it  contained  no  power  of  sale;  and  if  it  did  contain  such 
power,  by  statute,  the  sale  must  be  made  pursuant  to  it;  the 
sale  made  under  the  order  of  the  court  upon  this  petition  is 
void. 

(Wilson  v.  Holt,   83   Ala.   528  —  3   So.   Rep.    321.) 

So,  when  by  statute  a  probate  court  is  authorized  to  order 
a  sale  of  a  decedent's  lands  after  his  personal  property  is  ex- 
hausted, it  has  been  held  that  a  sale  made  under  an  order  is- 
sued upon  a  petition  which  merely  alleges  the  insufficiency  of 
such  personal  estate  to  pay  the  debts,  is  void  for  jurisdictional 
defect. 

(Sloan  v.  Sloan,  25  Fla.  53  —  5  So.  Rep.  G03;  Barchman  v.  Charlton, 
1  Coldw.  381;    Hays  v.  McXcaly.    16  Fla.  409.) 

A  sale  by  an  administrator  under  an  order  of  the  court  is 
void  if  the  order  is  not.  supported  by  a  written  petition  re- 
quired by  law,  the  petition  occupying  a  position  in  such  case 
as  a  complaint  in  a  suit  at  law. 

(Teverbaugh  v.  Hawkins.  82  Mo.  180;  Fineh  v.  Edmonson,  9  Tex. 
504;  Corwin  v.  Merritt,  3  Barb.  341.) 


392  VOID   JUDICIAL    AND    EXECUTION    SALES. 

Land  Sold  not  Embraced  in  the  Order  or  Decree. 

§  442.  A  judicial  sale  of  land  not  embraced  in  the  order  or 
decree  of  sale  is  without  authority,  and  though  regularly  con- 
firmed by  the  court,  is  nevertheless  an  unconditional  nullity. 
As  to  the  land  not  included  it  is  a  sale  without  an  order  and 
manifestly  void. 

(Melton  v.  Fitch,  125  Mo.  281  —  28  S.  W.  Rep.  612 ;  Ryan  v.  Dox,  25 
Barb.  440;  Collins  v.  Bali.  S2  Tex.  259  —  17  S.  W.  Rep.  614;  Greene  v. 
Holt,  76  Mo.  677 ;  Shriver  v.  Lynn,  2  How.  43 ;  Ball  v.  Collins,  5  S.  W. 
Rep.  622;  Evans  v.  Snyder,  64  Mo.  516.) 

In  Iowa  where  the  notice  of  application  for  an  order  of 
sale  was  for  one  tract  of  land,  and  the  order  to  sell,  notice 
of  sale,  and  deed  were  for  a  different  tract,  the  sale  was  con- 
sidered void  for  want  of  jurisdiction  to  grant  the  license. 

(Frazier  v.  Steenrod,  7  Iowa,  339  —  71  Am.  Dec.  447.) 

No  Notice  of  Application  for  Order  of  Sale. 

§  443.  If  the  proceeding  by  an  administrator  or  guardian  to 
sell  land  is  considered  as  in  rem  the  petition  to  sell  confers 
jurisdiction,  and  a  failure  to  give  the  notice  prescribed  by 
statute  of  the  application  is  but  an  irregularity  which  will 
not  expose  the  sale  to  collateral  attack. 

(Ryan  v.  Ferguson,  3  Wash.  356  —  28  Pac.  Rep.  910;  Lyons  v.  Ham- 
ner,  84  Ala.  197  —  4  So.  Rep.  26;  Cantelou  v.  Whitley,  85  Ala.  247  — 
4  So.  Rep.  810;  Apel  v.  Kelsey,  47  Ark.  413  —  2  S.  W.  Rep.  102;  Scarf 
V.  Aldrich,  97  Cal.  360  —  32  Pac.  Rep.  324;  Myers  v.  McGavock,  39 
Neb.  843  — 5S  N.  W.  Rep.  522;  Lynch  v.  Baxter,  4  Tex.  431  —  51  Am. 
Dec.  735;  Oriol  v.  Herndon,  38  La.  Ann.  759;  Heath  v.  Layne,  62  Tex. 
686.) 

But  it  is  otherwise  where  the  proceedings  are  considered 
adversary,  for  then  the  failure  to  give  the  notice  required  by 
statute  of  the  application  for  the  order  of  sale  is  a  jurisdic- 
tional defect  rendering  the  sale  void  upon  collateral  inquiry, 
notwithstanding  its  confirmation. 

(Perry  v.  Adams,  98  N.  C.  167  —  3  S.  E.  Rep.  729;  Railway  Co.  v. 
Cook,  43  Kan.  83  —  22  Pac.  Rep.  9SS;  Johnson  v.  Cobb,  29  S.  C.  372  — 
7  S.  E.  Rep.  601;  Hawkins  v.  Hawkins,  28  Ind.  66;  Mickel  v.  Hicks.  19 
Kan.  578  —  27  Am.  Rep.  161;  Gibbs  v.  Shaw,  17  Wis.  197  —  S4  Am. 
Dec.  737;  Fell  v.  Young,  63  111.  106;  Martin  v.  Neal,  125  Ind.  547  -25 
N.  E.  Rep.  813;  French  v.  Hoyt,  6  N.  H.  370  —  25  Am.  Dec.  464;  O'Dell 
v.  Rogers,  44  Wis.  172;  Fisk  v.  Kellogg,  3  Ore.  503;  Jenkins  v.  Young, 
35  Hun,  569;  Doe  v.  Bowen,  8  Ind.  197;  Clark  v.  Hillis,  134  Ind.  421  — 
34  N.  E.  Rep.  13.) 


INSTANCES    OF    SALES    VOID    COLLATERALLY.  393 

So  where  the  statute  required  a  certain  number  of  weeks' 
notice  to  be  published  by  an  administrator  before  applying 

to  the  court  for  a  license  to  sell,  a  notice  for  a  time  less  than 
that  prescribed  by  the  statute  is  insufficient  to  confer  juris- 
diction and  the  sale  under  the  order  thus  granted  is  a  nullity. 

(Townsend  v.  Tallent,  r;:;  Cal.  45  —  91  Am.  Dec.  617;  Mickel  v.  Hicks, 
19  Kan.  573  —  27  Am.  Rep.  1G1 ;  Gibson  v.  Roll,  30  ill.  172  —  83  Am. 
Dec.  181.) 

Sale  of  Land  Located  in  Another  State. 

§  414.  Upon  the  fundamental  principle  of  international 
jurisprudence  that  the  courts  of  each  state  or  nation  have  ex- 
clusive jurisdiction  to  adjudicate  upon  the  title  of  lands  Id- 
eated within  their  territorial  borders,  the  sale  of  land  lying 
in  one  state  under  the  order,  decree  or  execution  of  a  court 
of  another  state,  or  a  judgment  purporting  to  in  anywise 
affect  the  title  to  the  same,  is  absolutely  void. 

(Trust  Co.  v.  Telegraph  Co.,  55  Conn.  334  —  11  All.  Rep.  1S4;  Wil- 
kinson v.  Leland,  2  Pet.  627;  Carpenter  v.  Strange,  141  U.  S.  S7  — 11 
Sup.  Ct.  Rep.  960;  Lindley  v.  Oreilly,  50  X.  J.  L.  636  —  15  Atl.  Rep. 
379;  Davis  v.  Deadly,  7  C.  E.  Green.  115;  Public  Works  v.  Columbia 
College.  17  Wall.  521;  Nelson  v.  Potter,  50  N.  J.  L.  324  —  15  Atl. 
Rep.  375.) 

Failure  of  Jurisdiction  by  Constructive  Service. 

§  445.  A  personal  judgment  for  money  against  a  non-resi- 
dent on  constructive  service  of  process  only  and  without  vol- 
untary appearance  being  utterly  void,  it  creates  no  lien  upon 
the  defendant's  lands  and  a,  sale  under  execution  founded 
upon  such  judgment  is  void  and  subject  to  collateral  im- 
peachment. 

(Pennoyer  v.  Neff,  95  U.  S.  714;  Fowler  v.  Lewis,  36  W.  Va.  112  — 
14  S.  E.  Pep.  447:  Davis  v.  Walkelee,  156  U.  S.  6S0— -15  Sup.  Ct.  Rep. 
555;  McCracken  v.  Flanagan,  141  N.  Y.  174  —  35  X.  E.  Rep.   10.) 

And  if  the  defendant's  property  is  proceeded  against  it 
must  lie  attached  and  thus  brought  within  the  jurisdiction  of 
the  court,  before  the  publication  of  the  notice  or  else  the  sab- 
is  a  nullity. 

(Real  Estate    Co.  v.   Hendrix.   28  Ore.   4S5  —  42  Pac.  Rep.   514.) 

In  some  states  the  seizure  of  the  property  of  a  non-resident 
defendant  by  attachment  confers  jurisdiction  and  a  failure 
to  give  the  notice  prescribed  by  statute  is  not  fatal  to  the  sale, 


394  VOID    JUDICIAL    AND    EXECUTION    SALES. 

(Craig  v.  Fraser.  73  Ga.  246:  Paine  v.  Moreland.  15  Ohio,  435  —  45 
Am.  Dec.  585;  McDonald  v.  Simcox,  98  Pa.  St.  619;  Needham  v.  Wilson. 
47  Fed.  Rep.  97;  Bray  v.  McClury,  55  Mo.  128;  Cochran  v.  Loring,  17 
Ohio,  409;  Hardin  v.  Lee,  51  Mo.  241;  Johnson  v.  Gage,  57  Mo.  160; 
Kane  v.  MeCowan,   55  Mo.  1S1.) 

but  by  the  weight  of  authority  supported  by  principle  the 
published  notice  after  seizure  is  essential  to  confer  jurisdiction 
and  its  omission  renders  the  sale  void. 

(Barber  v.  Mori  is.  37  Minn.  194  —  33  N.  W.  Rep.  559;  Douglass  v. 
Insurance  Co.,  13S  X.  Y.  209  —  33  X.  E.  Rep.  938;  Mining  Co.  v.  Mining 
Co.,  12  Colo.  46—20  Pac.  Rep.  771;  Wescott  v.  Archer,  12  Xeb.  345  — 
11  X.  W.  Rep.  491;  Cumniings  v.  Tabor,  61  Wis.  185  —  21  X.  W.  Rep. 
72;  Woolridge  v.  Monteuse,  27  La.  Ann.  79;  Bell  v.  Olmstead,  18  Wis. 
69;  Clark  v.  Bryan,  16  Md.  171;  Edwards  v.  Toomer,  14  S.  &  M.  75; 
Ingle  v.  McCurry,  1  Heisk.  26.) 

The  sale  in  the  foreclosure  of  a  mechanic's  lien  upon  con- 
structive service  of  process  against  a  resident  defendant  is 
void  though  made  under  a  statute  expressly  authorizing  it. 
Such  a  statute  is  unconstitutional  and  void,  and  service  by 
publication  under  circumstances  of  this  kind  is  not  due  process 
of  law  within  the  constitutional  guaranty. 

(Bardwell  v    Collins,  44  Minn.  97  —  46  X.  W.  Rep.  315.) 

A  foreclosure  suit  and  sale  under  the  decree  rendered 
therein  upon  constructive  service  of  process  against  a  person 
dead  at  the  time  the  action  was  instituted  or  service  com- 
pleted is  a  mere  nullity. 

(Williams  v.  Hudson,  93  Mo.  524  —  6  S.  W.  Rep.  261;  Bollinger  v. 
Chouteau,  20  Mo.  89;  Bragg  v.  Thompson,  19  S.  C.  572.) 

And  a  judgment  based  upon  the  ground  of  non-residence  in 
attachment  proceedings  rendered  against  a  foreign  corpora- 
tion which  at  the  time  was  a  domestic  corporation,  the  judg- 
ment and  all  proceedings  thereunder  are  void  for  want  of 
jurisdiction, 

(Bernhart  v.  Brown.  119  X.  C.  506  —  26  IS.  E.  Rep.  162.) 

and  a  personal  judgment  rendered  in  a  foreign  attachment 
without  personal  service  or  appearance  by  the  defendant  will 
not  support  a  sale  under  execution. 

(Stanley  v.  Stanley,  35  S.  C.  94  —  14  S.  E.  Rep.   675.) 

The  jurisdiction  of  the  court  in  proceedings  in  attachment 
against  non-residents  depends  upon  the  filing  of  a  proper  affi- 


INSTANCES  OF  SALES  VOTD  COLLATERALLY. 


395 


davit;  if  the  affidavit  is  altogether  omitted  or  is  fatally  de- 
fective, the  sale  of  the  property  under  the  order  of  the  court 
may  be  collaterals  attacked. 

(Rubber  Co.  v.  Knapp.  01  Wis.  103-20  X.  W.  Rep.  651;  Birchall  v. 
Griggs  4  N.  Dak.  305-60  X.  W.  Rep.  842;  Mentzer  v.  Ellison,  i  <  olo 
^pp6315-43  Pac.  Rep.  164;  Borland  v.  Kingsbury,  65  Mich.  59-  31 
N  W  Rep.  620;  Bray  v.  McClury,  55  Mo.  128;  Whitney  v.  Burnett, 
15  Wis.  01;  Burnet!  v.  McCluey,  78  Mo.  67G;  Hargadine  v.  Van  Horn, 
72  Mo.  370.) 

If  the  affidavit  for  publication  fails  to  show  that  the  cause 
of  a.-lion  sued  on  was  one  upon  which  service  by  publication 
is  authorized  bv  statute,  the  sale  has  been  held  void. 

(Adams  v.  Baldwin,  49  Kan.  781-31  Pac.  Rep.  681;  Grouch  v. 
Martin.  47  Kan.  313-27  Pac.  Rep.  985;  Harris  v.  Claflm,  36  Kan.  .,43  — 
13  Pac.  Rep.  S30;  Nelson  v.  Rountree,  23  Wis.  367.) 

So  where  the  statute  required  the  notice  published  to  non- 
residents to  mention  what  the  cause  of  action  was,  a  new 
cause  of  action  added  to  the  one  embraced  in  the  petition  and 
notice,  and  a  judgment  based  upon  both  causes  united  was 
rendered,  which  is  void  and  will  not  support  a  sale  thereunder. 

(Stewart  v.  Anderson.  70  Tex.  5S8  —  S  S.  W.  Rep.  295.) 

A  sale  under  a  judgment  in  mortgage  foreclosure  upon 
constructive  service  of  "process  in  which  the  defendant's  sur- 
name only  is  mentioned  is  void  when  questioned  in  a  collateral 

proceeding ; 

(Schisel  v.  Dickson,  129  Ind.  139  —  28  N.  E.  Rep.  540.) 

or  where  the  defendant's  Christian  name  was  set  out  in  the 
published  notice  radically  wrong, 

(Colton  v.  Rupert,  60  Mich.  318  —  27  N.  W.  Rep.  520.) 
or  where  the  petition  mentioned  the  defendant  by  his  correct 
name  as,   Kike,  but  the  published  notice  designated  him  as 
Pike,  and  the  judgment  by  default  subsequently  entered  was 
against  the  defendant  in  his  right  name, 

(Newman  v.   Bowers,  72   Iowa.  465  —  34   N.  W.   Rep.  212.) 

the  sale  under  execution  will  be  void  upon  collateral  inquiry. 

Sales  in  Foreclosure  of  Tax  Liens. 

§  446.  A  judgment  and  sale  in  foreclosure  of  a  tax  lien 
was  held  void  in  Minnesota  because  of  the  failure  of  the 
board  of  county  commissioners  to  designate  by  resolution  the 


39G  VOID    JUDICIAL    AXD    EXECUTION    SALES. 

particular  newspaper  in  which  the  delinquent  tax  list  should 
be  published,  and  certify  to  the  court  a  copy  of  such  resolu- 
tion, as  by  statute  required.  The  filing'  of  such  resolution  is 
considered  a  jurisdictional  requirement  to  a  valid  publication 
and  its  omission  renders  the  proceedings  void. 

(Merriam  v.  Knight,  43  Minn.  493  —  45  N.  W.  Rep.  1098.) 

And  a  similar  conclusion  was  readied  by  the  same  court 
where  the  editor  of  a  particular  paper  is  named  in  the  resolu- 
tion instead  of  the  paper  itself; 

(Eastman  v.   Linn,  2G  Minn.   215  —  2   N.   W.  Rep.  G93.) 

and  a  sale  of  lands  in  proceedings  in  foreclosure  of  a  tax  lien 
upon  lands  not  described  in  the  published  delinquent  list  is 
a  nullity  for  jurisdictional  infirmity  and  subject  to  successful 
collateral  impeachment. 

(Smith  v.  Kipp.  49  Minn.  119  —  51  X'.  W.  Rep.  656;  Feller  v.  Clark, 
36  Minn.  338  —  31  N.  W.  Rep.  175;  Vanderlinde  v.  Canfield,  40  Minn. 
541  —  42  N.  W.  Rep.  53S;  Kipp  v.  Frenhold,  37  Minn.  132  —  33  N.  W. 
Rep.  697.) 

Though  in  Illinois  the  judgment  in  foreclosure  of  a  tax  lieu 
is  by  statute  declared  conclusive  evidence  of  its  regularity 
and  validity  in  all  collateral  proceedings,  except  in  cases 
where  the  tax  or  special  assessment  has  been  paid,  or  the  land 
was  not  liable  to  the  tax  or  assessment,  yet  the  court  held  a 
tax  judgment,  sale  and  deed  void  collaterally  where  unau- 
thorized claims  were  included  in  the  levy  and  judgment; 

(Drake  v.  Ogden,  128  111.  603  —  21  N.  E.  Rep.  511;  Riverside  Co.  v. 
Howell,  113  111.  256;  McLaughlin  v.  Thompson,  55  111.  249.) 

but  in  Minnesota  and  Missouri  this  was  not  considered  fatal 
to  the  sale. 

(Allen  v.  Ray,  96  Mo.  542  —  10  S.  W.  Rep.  357;  Coffin  v.  Estes,  32 
Minn.  367  —  20  X.  W.  Rep.  357;  Kipp  v.  Dawson,  31  Minn.  373  —  17  N. 
W.   Rep.   961.) 

Where  by  statute  proceedings  to  enforce  tax  liens  must  be 
instituted  against  the  owner  of  the  land,  if  there  is  a  mis- 
nomer in  tin's  regard,  the  sale  is  void.  As  where  the  judg- 
ment is  against  "  Siemonson  "  and  the  true  name  of  the  owner 
is  "  Simonson  ",  the  proceedings  will  not  support  a  tax  title. 

(Simonson  v.  Dolan,  114  Mo.  170  —  21  S.  W.  Rep.   510.) 


INSTANCES  01  SALES  VOID  COLLATERALLY. 


397 


So  it.  is  held  in  Missouri  that  the  interest  in  land  of  an  heir 
who  is  not  made  a  party  to  a  judicial  proceeding  to  collect 
a  tax  on  the  land  is  not  affected  thereby. 

(Wolcott  v.   Sand,    122  Mo.   621-27  S.  W.   Rep.   331.) 

In  Illinois  where  the  judgment  against  land  includes  an 
illegal  tax,  or  improper  costs,  the  sale  of  the  property  there- 
under is  a  nullity  if  there  was  no  appearance  of  the  owner  on 
the  application  for  judgment. 

(Gage  v.  Lyons,  L38  111.  590-28  S.  W.  Rep.  832;  Riverside  County 
V.  Howell,  127  111.  431.) 

No  Additional  Bond,  Notice  of  Sale  Given  or  Oath  Taken.      _ 

§  447   In  states  where  there  is  a  statute  providing  that  in 
sales  by  administrators,  executors  and  guardians,  if  it  appears 
that  certain  things  have  been  done,  among  them  that  the 
fiduciary  has  given  a  sale  bond,  taken  the  oath  concerning  the 
sale   and  has  given  the  notice  of  sale  as  by  law  required,  the 
sale  shall  not  be  avoided  by  the  ward  or  heir,  the  failure  to 
give  the  bond,  take  the  oath  or  publish  the  notice  makes  the 
sale  void  when  questioned  in  a  collateral  action. 
"    (Weld  v.  Johnson  Mfg.  Co.,  84  Wis.  537-54  N.  W.  Rep.  335;  Huber- 
,nann  v.  Evans.  46  Neb.  784-65  N.  W.  Rep.  1045;  Montour  V^ Purdy, 
11  Minn   384  -  88  Am.  Dec.  88;  McGrubb  v.  Bray,  36  Wis.  333;  Williams 
v    Reed    5  Pick.  480;  Tracy  v.  Roberts,  88  Me.  310-34  Atl.  Rep.  68; 
Bachelor  v.  Korb,  78  N.  W.  Rep.  485;  Williams  v.  Morton.  38  Me.  47  — 
61  Am.  Dec.  229;  Walker  v.  Goldsmith,  14  Ore.  125-12  Pac.  Rep.  537; 
Hartley  v.  Corze,  38  Minn.  325-37  N.  W.  Rep.  449.) 

Execution  Sale  at  Wrong  Time  or  Place. 

§  448.  A  sale  of  land  under  execution  made  in  a  county 
other  than  that  wherein  the  premises  are  located,  where  the 
law  prescribes  a  particular  place  where  real  estate  is  to  be 
sold  under  execution  is  void  in  a  sense  that  it  can  be  ques- 
tioned in  a  collateral  way,  the  requirement  of  statute  m  tins 
regard  being  held  mandatory. 

(Moody  v.  Moeller,  72  Tex.  635-10  S.  W.  Rep.  7:27:  Short  v.  Hep- 
burn, 75' Fed.  Rep.  113;  Terry  v.  O'Neal,  71  Tex.  594-9  S.  W.  Rep. 
673;  Koch  v.  Bridges,  45  Miss.  247;  Sinclaire  v.  Stanley,  64  Tex.  6<; 
Holmes  v.  Taylor,  48  Ind.  169;  Grace  v.  Garnet,  38  Tex.  156.) 

And  a  sale  of  real  estate  under  execution  made  on  a  day 
other  than  that  prescribed  by  law,  as  for  instance  during  a 
term  of  court,  is  void. 


398  VOID    JUDICIAL    AND    EXECUTION    SALES. 

(Loudermilk  v.  Corpenning,  101  N.  C.  649  —  8  S.  E.  Rep.  117;  Tanner 
v.  Stine,  18  Mo.  580  —  59  Am.  Dec.  320;  Worthen  v.  Basket,  99  N.  C. 
70  —  5  S.  E.  Rep.  401;  Martin  v.  Bonsach,  61  Mo.  556;  Mayers  v.  Carter, 
87  N.  C.  146  ) 

Sales  Void  Because  of  Defect  in  Execution  or  its  Enforcement. 

§  4-19.  A  sale  under  execution  upon  a  levy  made  after  the 
expiration  of  the  active  energy  of  the  writ  is  void  for  want  of 
jurisdiction  and  may  be  impeached  in  any  collateral  pro- 
ceeding. 

(Evans  v.  Caiman,  92  Mich.  427  —  52  N.  W.  Rep.  787:  Waldorp  v. 
Friedman,  90  Ala.  157  —  7  So.  Rep.  510;  Rand  v.  Cutler,  155  Mass.  451  — 
29  N.  E.  Rep.  1085 ;  Ansonia  Co.  v.  Connor,  103  N.  Y.  502  —  9  N.  E. 
Rep.  238;  Cain  v.  Woodward,  74  Tex.  549  —  12  S.  W.  Rep.  319;  Faull  v. 
Cooke,  19  Ore.  455  —  26  Pac.  Rep.  662 ;  Doe  v.  McKinnie,  4  Hawks,  279  — 
15  Am.  Dec.  519;  Wyer  v.  Andrews,  13  Me.  168  —  29  Am.  Dec.  497.) 

And  the  issuance  of  execution  and  sale  against  a  deceased 
person  after  his  death,  though  lie  was  alive  at  the  time  of 
rendition  of  the  judgment,  is  wholly  inoperative  to  pass  the 
title  to  the  purchaser. 

(Hooper  v.  Caruthers,  7S  Tex.  432  —  15  S.  W.  Rep.  98;  Norfchcraft  v. 
Oliver,  74  Tex.  162  —  11  S.  W.  Rep.  1121.) 

The  sale  of  personal  property  under  execution  is  void  when 
at  the  time  of  sale  the  same  was  locked  up  in  a  building  where 
it  could  not  be  seen  and  the  sale  occurred  upon  other  prem- 
ises than  those  whereon  the  property  was  located; 

(Penney  v.  Earle,  87  Me.  167  —  32  Atl.  Rep.  879;  Lawry  v.  Ellis,  S5 
Me.  500  —  27  Atl.  Rep.  518.) 

and  an  execution  sale  of  personal  property  which  has  not  been 
taken  in  possession  by  the  officer  and  which  is  not  at  or  near 
the  place  of  sale,  is  also  void  and  can  be  impeached  in  a  col- 
lateral proceeding. 

(Alston  v.  Morphew,  113  N.  C.  460  —  18  S.  E.  Rep.  335;  Paper  Co. 
v.   Publishing   Co.,   31   S.   W.    Rep.    10S3.) 

So  an  execution  sale  of  lands  where  the  writ  is  against 
'  William  Van  Hagen  "  on  a  judgment  recovered  against 
"  II.  TV.  Van  Hagen  "  is  wholly  insufficient  to  pass  title,  and 
the  sale  open  to  collateral  attack  by  the  former  owner. 

(Morris  v.    Balkham,   75  Tex.   111  —  12   S.   W.   Rep.    970.) 

A  sale  of  land  under  an  execution  not  bearing  the  seal  of 
the  court  out  of  which  it  emanated,  as  required  by  statute,  is 


INSTANCES    OF   SALES   VOID   COLLATEEALLT.  399 

held  to  be  an  absolute  nullity.  The  law  directing  the  writ 
to  be  in  a  particular  form  —  to  be  sealed  with  the  seal  of 
the  court  —  being  considered  mandatory  and  the  requirement 
of  the  seal  imperative,  without  which  the  sale  is  void. 

(Weaver  v.  lVasley,  163  111.  251  —  45  N.  E.  Rep.  119;  Sidwell  v. 
Schumacher,  99  111.  426;  Egan  v.  Connelly,  107  111.  458;  Etoseman  v. 
Miller,  84  111.  297.) 

Sales  Void  Because  of  Fraud  in  Judgment  or  Sales. 

§  450.  The  general  rule  that  the  destructive  virus  of  fraud 
vitiates  everything  applies  with  as  much  force  to  judicial  rec- 
ords  and  proceedings  as  it  does  to  private  contracts  and  trans- 
actions. Accordingly,  it  is  held  that  while  a  probate  sale  is 
a  judicial  one,  it  is  nevertheless  subject  to  collateral  impeach- 
ment by  one  affected  but  not  implicated  for  i'nud  which  en- 
tered into  the  procuration  or  rendition  of  the  order  of  sale,  or 
fraud  used  in  the  consummation  of  the  sale  itself. 

I  Lancaster  v.  Wilson,  27  Gratt.  624;  Mitchell  v.  Kintzer,  5  Pa.  St. 
210  —  47  Am.  Dec.  40S;  Verner  v.  Carson,  66  Pa.  St.  440;  Hoitt  v.  Hol- 
comb,  23  X.  II.  535;  Hall  v.  Hamlin.  2  Watts.  354;  Rhoada  v.  Selin. 
4  W.  C.  C.  715;  Potts  v.  Wright,  82  Pa.  St.  498.) 

And  as  a  general  rule  a  judgment  or  decree  procured 
through  the  fraudulent  machinations  and  collusion  of  the 
parties  thereto  with  the  intent  and  purpose  of  defrauding  a 
third  person  is  subject  to  collateral  attack  by  such  party,  and 
the  sale  thereunder  must  fall  to  the  ground,  as  fraud  is  con- 
sidered a  thing  which  can  not  be  permitted  to  stand  even  when 
robed  in  a  judgment  of  a  court  of  justice. 

(Bank  v.  Moore,  152  111.  528  —  38  N.  E.  Rep.  684;  Ogle  v.  Baker,  137 
Pa.  St.  37S  —  20  Atl.  Rep.  998;  Palmer  v.  Martindell,  43  N.  J.  Eq.  90  — 
fo  All.  Liep.  802;  Smith  v.  Cuyler,  7s  Ga.  654  —  3  S.  E.  Rep.  406;  Sager 
v.  Meade,  164  Pa.  St.  125  —  30  Atl.  Pep.  284;  Atkinson  v.  -Mien,  12 
Vt.  619  —  36  Am.  Dee.  361;  Freydenhall  v.  Baldwin,  103  111.  325;  Berg- 
man v.  Hutcheson,  60  Miss.  872.) 

But  this  rule  does  not  include  the  parties  or  their  privies, 
unless  the  evidence  of  the  fraud  is  apparent  upon  the  face  of 
the  record; 

(Williams  v.  Haynes,  77  Tex.  283  —  13  S.  W.  Rep.  1029;  Morrill  v. 
Morrill,  20  Ore.  96  —  25  Pae.  Rep.  362;  McClanahan  v.  West,  too  Mo. 
309  —  13  S.  W.  Rep.  674;  Smithson  v.  Smithson,  37  Neb.  535  —  56  N. 
W.  Rep.  300;  Hollinger  v.  Reeme,  138  Ind.  363  —  36  N.  E.  Pep.  1114.) 


400  VOID  JUDICIAL  AND  EXECUTION  SALES. 

although  it  does  apply  to  the  purchaser  to  whom  actual  fraud 
is  imputed  in  procuring  a  title  at  a  judicial  or  execution  sale, 
as  he  not  only  obtains  nothing  by  his  purchase,  but  by  reason 
of  his  fraud  forfeits  the  money  paid. 

(Gobel  v.  O'Conner,  43  Neb.  49-61  N.  W.  Rep.  131;  Phelps  v. 
Benson,  161  Pa.  St.  418  —  29  Atl.  Rep.  86;  Evans  v.  Maurey,  112  Pa. 
St.  300—3  Atl.  Rep.  850;  Gilbert  v.  Hoffman.  2  Watts,  66  —  26  Am.  Dec. 
102;  McCrasky  v.  Graff,  23  Pa.  St.  321  —  62  Am.  Dec.  336.) 

Trial  Judge  Disqualified  from  Acting. 

§  451.  If  the  judge  who  presided  in  a  case  wherein  he  was 
by  statute  disqualified  by  reason  of  being  a  party  thereto  or 
for  other  reasons  recognized  in  the  statute,  the  judgment  is 
held  to  be  void,  because  in  a  judicial  sense  the  office  is  vacant 
under  such  circumstances  and  his  acts  in  such  cause  are 
wholly  devoid  of  judicial  sanction  by  reason  of  the  inhibition 
of  the  statute,  as  well  as  the  general  policy  of  the  law  requir- 
ing absolute  fairness  and  purity  in  the  administration  of 
justice. 

(Horton  v.  Howard,  79  Mich.  642  —  44  N.  W.  Rep.  1112;  Frevert  v. 
Swift,  19  Nev.  363  — 11  Pac.  Rep.  273 ;  West  v.  Wheeler,  49  Mich.  505 
—  13  N.  W.  Rep.  836;  Hall  v.  Thayer,  105  Mass.  219  —  7  Am.  Rep.  513; 
In  re  Ryers,  72  N.  Y.  1  — 2S  Am.  Rep.  88;  Estate  of  White,  37  Cal.  192: 
In  re  Mfg.  Co.,  77  N.  Y.  101  —  33  Am.  Rep.  579;  Chambers  v.  Hodges, 
23  Tex.  105.) 

EFFECT  OF  STATUTE  OF  LIMITATIONS   ON  JU- 
DICIAL SALE. 

Statute  Does  not  Apply  to  Void  Sales. 

§  452.  Special  statutes  of  limitations  by  which  certain  peri- 
ods are  prescribed  within  which  the  validity  of  sales  of  land 
made  in  probate  proceedings  by  administrators,  executors  and 
guardians  under  the  order  of  court  may  be  questioned  or  im- 
peached, according  to  the  weight  of  judicial  authority,  have 
no  application  to  such  sales  which  are  void  because  of  juris- 
dictional infirmity.  Nor  arc  these  statutes  of  limitations  in- 
tended to  prescribe  a  limitation  against  attack  upon  infirmi- 
ties caused  by  reason  of  the  fact  that  the  sale  was  made  by 
an  unauthorized  or  incompetent  person  having  no  semblance 
of  authority  to  make  it,  as  for  instance,  by  one  assuming  to 


EFFECT  OF  STATUTE  OF  LIMITATIONS  ON  JUDICIAL  SALE.       401 

act  as  administrator  or  guardian,  but  who  in  fact  is  wholly 
without  authority  to  act  as  such. 

Cases  where  there  is  a  want  of  jurisdiction,  or  where  the 
sale  is  made  by  an  unauthorized  or  incompetent  person  hav- 
ing no  semblance  of  authority  to  do  so,  come  neither  within 
the  letter  nor  spirit  of  such  statutes,  and  manifestly  in  all 
such  eases  the  heir  or  ward  is  not  barred  by  the  lapse  of  the 
prescribed  time  from  asserting  his  right  or  title  to  the  prop- 
erty. 

(Pursley  v.  Hayes.  22  Iowa,  11  —  92  Am.  Dec.  350;  Holmes  v.  Beal, 
9  Cush.  223;  Boyles  v.  Boyles,  37  Iowa,  592;  Chadbourne  v.  Ratcliff, 
30  Me.    354;    Rankin    v.    Miller,    43    Iowa,    11.) 

In  Indiana  it  is  held  that  the  statute  applies  to  void  sales. 
because  if  it  has 'no  application  to  these  it  must  of  necessity 
be  nugatory,  for  if  the  sale  is  net  void  the  purchaser  would 
not  need  the  assistance  of  the  statute  of  limitations.  ^  This 
ruling  is  not  only  against  the  weight  of  authority  but  is  un- 
tenable upon  principle,  for  the  mere  lapse  of  time  should  not 
alone  make  a  void  act  unassailable. 

(Oir  v.  Owens,  128  Ind.  229  —  27  N.  E.  Rep.  493;  Brown  v.  Maher, 
68  Ind.  14;  Moore  v.  Ross,  139  Ind.  200  —  38  N.  E.  Rep.  817:  Walker  v. 
Hill,  111  Ind.  223  —  12  X.  E.  Rep.  387;  Vancleave  v.  Milliken,  13 
Ind.   105.) 

Nor  have  such  statutes  any  application  to  sales  in  proceed- 
ings in  foreclosure  of  tax  liens  where  the  judgment  in  fore- 
closure was  rendered  upon  publication  of  the  tax  list  and 
notice  so  insufficient  as  to  fail  to  confer  jurisdiction  to  pro- 
nounce the  judgment. 

(Smith  v.  Kipp,  49  Minn.  119  —  51  N.  W.  Rep.  656;  Feller  v.  Clark, 
30  Minn.  338  —  31  X.  W.  Rep.  175;  Kipp  v.  Frenhold,  37  Minn.  132  — 
33  N.  W.  Rep.  697;  Sanborn  v.  Cooper,  31  Minn.  307—17  X.  \V.  Hep. 
S56  ) 

Essentials  to  Availability  of  Plea  of  Statute. 

§  453.  The  defendant  in  an  action  involving  the  possession 
of  land,  who  establishes  his  title  to  the  same  by  virtue  of  a  sale 
in  proceedings  in  administration  or  guardianship  ami  deed  m 
consummation  thereof,  having  hold  possession  of  the  prem- 
ises for  the  prescribed  period,  and  who  pleads  the  statute  of 
limitations  in  bar  of  the  action  to  recover,  is  not  bound  to 
show  as  a  pre-requisite  to  the  availability  of  such  plea,  a 
26 


402  VOID   JUDICIAL  AND   EXECUTION    SALES. 

prima  facie  valid  sale  to  him,  for  such  a  requirement  would 
be  equivalent  to  a  total  denial  of  the  benefit  of  the  statute. 
Manifestly,  if  a  showing  of  a  prima  facie  valid  sale  is  exacted 
this  of  itself  is  sufficient  to  defeat  a  collateral  attack  upon  his 
title  and  the  statute  would  be  useless. 

(Vancleave  v.  Milliken,  13  Ind.  105;  Spencer  v.  Sheehan,  19  Minn. 
338 ;  Moore  v.  Eoss,  139  Ind.  200  —  27  > T.  E.  Rep.  S17 ;  Bank  v.  Corey, 
94  Ind.  457;  Walker  v.  Hill.  Ill  Ind.  223  —  12  N.  E.  Rep.  3S7;  Brown 
v.  Moher,  68  Ind.  14;  Holmes  v.  Beal,  9  Cush.  223;  Montour  v.  Purdy. 
11  Minn.  384  —  88  Am.  Dec.  88;  Smith  v.  Swensen,  37  Minn.  1  —  32  N. 
W.  Rep.  784;  Palmerton  v.  Hoop.  131  Ind.  23  —  30  N.  E.  Rep.  874.) 

But  as  a  condition  precedent  to  availing  himself  of  the 
statute  the  defendant  must  nevertheless  show  the  existence 
of  a  sale  in  fact  consummated  under  the  forms  of  law,  with- 
out which  he  can  not  utilize  the  benefits  of  the  statute. 

(Vancleave  v.  Milliken.  13  Ind.  105:  Rawlinga  v.  Bailey,  15  111.  178; 
Musgrove   v.   Conover,    85   111.   374.) 

Xor  will  the  statute  have  any  application  to  sales  made 
anterior  to  its  enactment,  as  such  statutes  usually  operate 
in  futirro  only,  and  leave  existing  rights  and  liabilities  to  be 
governed  and  determined  by  the  law  in  force  when  the  sale 
occurred.  If  a  retroactive  effect  is  to  be  attributed  the  legis- 
lative intent  must  be  plain. 

(Cooper  v.  Sunderland.  3  Iowa.  114  —  66  Am.  Dec.  52:  McMillan  v. 
McCormiek,  117  111.  79  —  7  X.  E.  Rep.  100.) 

STATUTES  DECEASING  THE  EFFECT  OF  JUDIC- 
IAL PROCEEDINGS. 

Purchase  by  Disqualified  Purchaser. 

§  454.  In  several  states  statutes  have  been  enacted  making 
the  existence  or  absence  of  certain  enumerated  matters  suffi- 
cient ground  for  the  avoidance  or  nullification  of  judicial  pro- 
ceedings of  the  nature  or  kind  therein  specified.  As  far  as 
our  investigations  have  gone  we  have  been  unable  to  find  a 
statute  expressly  providing  that  any  specified  defect  should 
make  the  judgment,  sale  or  other  proceeding  void  in  a  col- 
'•;il  proceeding.  Xor  are  any  of  them  so  broad  in  latitude 
as  to  declare  that  the  rights  acquired  under  such  judgment, 
sale  or  other  proceeding  should  be  void  in  the  hands  of  an 
innocent  party.         There  is  consequently   ample   room  for 


STATUTES   DECLARING  EFFECT   OF   JUDICIAL   PROCEEDINGS.       403 

statutory  construction,  and  investigation  discloses  that  con- 
.  flicting  conclusions  have  been  reached  by  the  courts  as  to  the 
effect  of  such  statutes.  Statutes  declaring'  a  purchase,  di- 
rectly or  indirectly,  by  an  administrator  or  guardian  void 
when  made  at  his  own  sale  have  been  construed  both  directory 
and  mandatory,  and  a  sale  made  in  contravention  thereof  is 
held  in  some  states  void  and  in  others  voidable  only. 

(McGraw  v.  Daly,  82  Mich.  500  —  46  N.  \V.  Rep.  671;  Terwillager  v. 
Brown.  44  X.  Y.  237;  Forbes  v.  Halsey,  26  N.  Y.  53;  Dwight  v.  Blackmar, 
2  Mich.  330;  Hoffman  v.  Harrington,  28  Mich.  90:  Melius  v.  Pabst  Brew- 
ing Co.,  93  Wis.  153  —  66  N.  W.  Rep.  518;  White  v.  Iselin,  26  Minn. 
487  —  5  N.  W.  Rep.  359;   Cline  v.  Catron,  22  Gratt.  378.) 

And  where  by  statute  a  purchase  at  a  judicial  sale  by  an 
appraiser  shall  be  considered  fraudulent  and  void,  it  was  held 
not  void  collaterally,  but  invalid  upon  a  direct  attack,  and 
hence  voidable  only. 

(Terrell   v.   Anchauer,    14   Ohio   St.    80.) 

Sale  not  Void  when  Certain  Things  Appear. 

§  455.  The  statute  enumerates  certain  thing's  and  provides 
that  if  these  appear  to  have  been  done  the  sale  shall  not  be 
avoided  by  an  heir  or  ward,  and  among  these  essentials  the 
appointment  of  the  administrator  or  guardian  does  not  ap- 
pear, and  it  is  held  that  collateral  inquiry  can  not  be  had  as 
to  such  appointment,  in  an  action  for  the  possession  of  the 
premises  sold; 

(Davis  v.  Hudson,  29  Minn.  27  — 11  N.  W.  Rep.  136;  Woods  v.  Monroe, 
17  Mich.  238.) 

but  among  the  things  enumerated  is  an  additional  bond  which, 
if  omitted,  renders  the  sale  void  upon  collateral  inquiry. 

( Weld  v.  Johnson  Mfg.  Co.,  84  Wis.  537  —  54  X.  W.  Rep.  335 ;  Bachelor 
v.  Korb,  78  N.  W.  Rep.  485;  Stewart  v.  Bailey,  28  Mich.  251;  Babcock 
v.  Cobb,  11  Minn.  347;  Williams  v.  Reed,  5  Pick.  480.) 

Or  where  the  notice  of  sale  is  one  of  the  requirements  in 
such  curative  statutes,  and  this  has  been  disregarded,  the  same 
results  will  follow. 

(Hartley   v.    Croze,    38    Minn.    325  —  37   N.   W.    Rep.    449.) 

And  the  same  result  follows  where  the  oath  has  not  been 
taken  or  subscribed  before  fixing  on  the  time  and  place  of 
sale  as  required  by  the  statute. 


404  VOID  JUDICIAL  AND  EXECUTION   SALES. 

(Bachelor  v.  Korb,  78  N.  W.  Rep.  485 ;  Bla«kman  v.  Baumann.  22  Wis, 
611;  Williams  v.  Reed,  5  Pick.  480;  Campbell  v.  Knights,  26  Me.  224; 
Ryder  v.  Flanders,  30  Mich.  336.) 

Where  the  statute  prescribes  what  the  petition  by  an  ad- 
ministrator to  sell  land  of  the  decedent  shall  state,  and  fur- 
ther provides  that  a  failure  to  set  out  the  facts  showing  a 
necessity  for  a  sale  shall  not  invalidate  the  subsequent  pro- 
ceedings if  the  defect  be  supplied  by  proofs  at  the  hearing, 
and  the  general  facts  disclosing  such  necessity  be  set  out  in 
the  decree,  it  is  held  that  where  both  petition  and  decree  fail 
to  show  that  a  sale  was  necessary,  it  is  subject  to  collateral 
impeachment. 

(Kertchem  v.  George,  7S  Cal.  597  —  21  Pac.  Rep.  372;  Estate  of  Rose, 
63  Cal.  346.) 

Other  Defects  and  Irregularities. 

§  456.  The  statute  in  Massachusetts  provides  that  no  sale 
of  real  estate  by  an  administrator  upon  license  of  the  court 
shall  be  void  because  of  any  irregularity  in  the  proceedings, 
which  has  been  decided  to  apply  only  to  sales  authorized  by 
the  license,  and  that  a  sale  by  an  administrator  of  real  estate 
in  excess  of  what  is  necessary  to  pay  debts  and  charges  of  ad- 
ministration, under  a  license  to  sell  only  what  is  necessary  for 
such  purposes,  is  unauthorized  and  void,  and  not  cured  by  the 
statute. 

(Gregson  v.   Tuson.    153   Mass.   325  —  26  N.   E.   Rep.   874.) 

The  statute  declared  the  discharge  in  insolvency  proceed- 
ings void  and  of  no  effect  in  case  an  unlawful  preference  had 
been  given,  and  the  court  held  this  to  mean  void  in  a  collat- 
eral sense. 

(Morse  v.  Reed,  13  Met.  62.) 

But  a  statute  providing  that  an  attachment  issued  without 
taking  a  bond  shall  be  void,  was  held  to  mean  void  in  a  direct 
proceeding  only. 

(Camberford  v.  Hall,  3  McCord,  345;  Banta  v.  Reynolds,  3  B.  Mon. 
80.) 

In  Wisconsin  a  statute  made  the  order  for  publication  of 
notice  conemsiw  in  all  collateral  actions  and  proceedings  of 
the  existence  of  the  essential  facts  to  authorize  the  making  of 


STATUTES  DECLARING  EFFECT  OF  JUDICIAL  PROCEEDINGS.   405 

such  order,  and  the  court  held  the  order  of  publication  valid 
collaterally,  notwithstanding  the  affidavit  was  made  by  an  at- 
torney and  failed  to  show  his  authority,  or  the  grounds  of  his 
belief.  The  insufficiency  or  invalidity  of  the  order  by  reason 
of  such  omissions  was  decided  to  be  cured  by  the  statute. 
(Sturm  v.  Adams,  56  Wis.  139  —  14  N.  W.  Rep.  69.) 


Chapter  VII. 


Caveat  Emptor,  and  the  Legal  and  Equitable  Rights  of 
Purchasers  at  Void  Execution  and  Judicial  Sales. 


ANALYSIS. 
Section  457.  Application  and  Qualification  of  the  Rule  caveat  emptor  — 
Defective  Title  or  Failure  of  Title. 

458.  In  Case  of  Judgment  or  Sale  is  Void. 

459.  Effect  of  Accident,  Fraud  or  Mistake. 

460.  Purchase  by  Judgment  Creditor. 

461.  Eight    of    Purchaser    to   Refuse    Payment    of   His    Bid  — 

When  Judgment  or  Sale  is  Void. 

462.  If  Purchaser  Bought  with  Notice  can  Not  Resist. 

463.  Negligence  of  Purchaser  Precludes  Resistance. 

464.  Purchaser  is  Chargeable  with  Facts  Disclosed  by  the 

Record. 

465.  If  Purchaser  Has  Been  Deceived  He  May  Refuse. 

466.  May  the  Purchaser  Demand  a  Marketable  Title. 

467.  Purchaser  a  Party  to  Proceedings  and  May  be  Com- 
pelled to  Pay. 

468.  Purchaser  is  Liable  for  Deficiency  on  a  Resale. 

469.  Right  of  Purchaser  to  Recover  Money  Paid  —  Rule 

caveat  emptor  Affecting  Recovery. 

470.  Reimbursement  Compelled  from  Parties. 

471.  Reimbursement  as  a  Condition  Precedent  to  Recovery 

of  Land. 

472. Judgment  Creditor  as  Purchaser. 

473.  Void  Sales  Ratified  by  Parties  in  Interest  —  Confirmation 

and  Ratification  in  General. 

474.  ■  Ratification  by  Receipt  of  Proceeds  in  Execution  Sale. 

475.  Chancery  and  Probate  Sales  Ratified  by  Receipt  of 

Proceeds. 

476.  ^Ratification  by  Conduct  Otherwise  than  by  Receipt 

of   Proceeds. 

477.  When  Ratification  by  Minors  Made. 

478.  Purchaser  in  Chancery  Sales  has  Right  to  Subrogation  r— 

Doctrine  Applies  to  Chancery  Sales  in  General. 

479.  Subrogation  in  Void  Mortgage  Foreclosure  Sales. 

4S0.  In  Foreclosure  of  Tax  Liens. 


APPLICATION  OF  THE  RULE  CAVEAT  EMPTOR.      407 

Section  481.  Purchasers  at  Probate  Sales  have  Right  to  Subrogation  — 
The  Doctrine  of  Subrogation  Generally  Applicable. 

482.  Right  Exists  in  Case  the  Sale  is  a  Nullity. 

4S3.  Right  of  Purchaser  at  Execution  Sales  to  Subrogation 
Affirmed  — Where  Execution  Defendanl   has  no  Title. 

484. Where  Judgment  is  Valid  but  Subsequent  Proceed- 
ings Void. 

485.  Doctrine  of  Subrogation  Denied  —  Results  of  Denial  oi  the 

Right  to  Subrogation. 

486.  Effect  of  Purchaser's   Fraud  on   Right  to  Subrogation  — 

Obtains  no  Title  and  Forfeits  Money  Paid. 

487.  Purchaser  of  Bomestead  in  Contravention  of  Statul  •■ 

488.  Fraudulent  Purchaser  May  Assert  Equities  in  Miss's- 

sippi. 

489.  Right  of  Purchaser  to  Equitable  Assistance  in  Supplying 

Defects.  Omissions  and  Mistakes  — Equity  Will  Not  Aid 
a  Defective  Execution  of  Statutory  Power. 

490.  Correction  of  Errors  or  Mistakes  in  General. 

491.  Errors  or  Mistakes  in  Proceedings  and  Deed. 

492.  Uncertainty  of  Description  in  Mortgage  and  Proceed- 


ings. 


493.  Equity  will  Compel  Officer  to  Make  Proper  Conveyance. 

APPLICATION  AND  QUALIFICATION  OF  THE 
RULE  CAVEAT  EMPTOR. 
Application  and  Qualification  of  the  rule  caveat  emptor  —  De* 
fective  Title  or  Failure  of  Title. 

§  457.  That  the  rule  caveat  emptor  is  applicable  to  a  pur- 
chaser at  a  judicial  and  execution  sale  is  a  settled  and  con- 
ceded proposition  of  jurisprudence.  The  only  difficulty  en- 
countered lies  in  the  application  of  the  rule  to  individual 
cases  A  conveyance  to  one  who  buys  at  such  sales  transmit. 
to  him  no  greater  title  or  estate  than  a  quit-claim  deed  in  the 
strictest  sense  from  the  judgment  debtor  would  transfer, 
which  is  simply  such  interest  as  the  debtor  or  decedent  has  in 
the  property  conveyed.  If  perchance  the  debtor  has  no  in- 
terest whatever,  manifestly  nothing  passes  by  the  proceed- 
ings  and  deed. 

(Borders  v.  Hodges,  154  111.  49S-39  N.  E.  Rep.  597  ;  Lindsay  v.  Cooper. 
94  Ala  170-11  Bo.  Rep.  325;  Lenders  v.  Thomas,  35  Fla.  518  —  11  So. 
Pep.  48;  Butler  v.  Fitzgerald,  43  Neb.  192-01  N.  W.  Rep.  640;  Steams 
v  Edson,  63  Vt.  259-22  All.  Rep.  420;  Pope  v.  Benster.  42  Neb.  304  - 
60  N.  W.  Rep.  561;  Velsian  v.   Lewis,   15  Ore.  539-16  Pac.  Rep.  631: 


408  VOID  JUDICIAL  AXD  EXECUTION  SALES. 

Lowe  v.  Rawlins,  83  Ga.  320  —  10  S.  E.  Rep.  204;  Hargreaves  v. 
Meneken,  45  Xeb.  668  —  63  N.  W.  Rep.  951;  Bond  v.  Montgomery,  56 
Ark.  563  —  20  S.  W.  Rep.  525 ;  Hooper  v.  Castetter,  45  Neb  67  —  63  N. 
W.  Rep.  135;  Roberts  v.  Hughes,  81  111.  130  —  25  Am.  Rep.  270;  Cooper 
v.  Lindsay,  109  Ala.  338  —  19  So.  Rep.  379.) 

In  Pennsylvania  the  rule  as  to  title  applies  only  as  to  open 
defects,  such  as  can  be  seen  or  ascertained,  and  not  to  secret 
defects,  against  which  the  purchaser  is  protected. 

(Tarr  v.  Robinson,  158  Pa.  St.  60  —  27  All.  Rep.  859:  Lance  v. 
Gorman,  136  Pa.  St.  200  —  20  Atl.  Rep.  792;  Dickinson  v.  Beyer,  87  Pa. 
St.  274;  Miller  v.  Baker,  166  Pa.  St.  414  —  31  Atl.  Rep.  121;  Banks  v. 
Ammon,  27  Pa.  St.  172.) 

In  execution  sales  the  sheriff  does  not  deed  with  a  war- 
ranty, whether  express  or  implied,  but  conveys  as  he  sold, 
merely  the  interest  of  the  execution  defendant  at  the  date 
of  the  lien  of  judgment,  levy  or  execution,  the  purchaser  buys 
at  his  peril,  and  in  the  absence  of  fraud  or  excusable  mistake 
he  can  obtain  no  relief  because  of  a  defective  title,  or  an  en- 
tire want  of  title  in  the  defendant. 

(Greer  v.  Wintersmith,  85  Ky.  516  —  4  S.  W.  Rep.  232;  Arnold  v. 
Donaldson,  46  Ohio  St.  73  —  18  N.  E.  Rep.  540;  Benbow  v.  Boyer,  89 
Iowa,  494—56  N.  W.  Rep.  544;  Neal  v.  Gillespy,  56  Ind.  451  —  26  Am. 
Rep.  37;  Jones  v.  Blumenstein,  77  Iowa,  361  —  42  N.  W.  Rep.  321; 
Danley  v.  Rector,  10  Ark.  211  —  50  Am.  Dec.  242;  Henderson  v.  Overton, 

2  Yerg.  394  —  24  Am.  Dec.  492;  Coyne  v.  Souther,  61  Pa.  St.  455;  Long 
v.  Waring,  25  Ala.  625 ;  Creps  v.  Baird,  3  Ohio  St.  277 ;  Rockwell  v.  Allen, 

3  McLean,  357;  Reed's  Appeal,  13  Pa.  St.  476;  Phillips  v.  Johnson,  14 
B.  Mon.  172;  Hammsmith  v.  Espey,  19  Iowa,  444;  Humphrey  v.  Wade, 
84  Ky.  391  —  1  S.  W.  Rep.  648;  Yocum  v.  Foreman,  77  Ky.  494.) 

The  rule  is  applicable  to  personal  as  well  as  to  real  prop- 
erty, for  the  purchaser  buys  merely  the  interest  of  the  defend- 
ant and  if  that  be  nothing  then  he  takes  nothing,  but  he  must 
pay  the  amount  of  his  bid. 

(Harrison  v.  Shanks,  13  Bush,  620;  Brown  v.  Gray,  6  Jones  L.  103  — 
72  Am.  Dec.  563;  McGhee  v.  Ellis,  4  Litt.  244  —  14  Am.  Dec.  124; 
Griffiths  v.  Fowler,  18  Vt.  325;  Methin  v.  Bexley,  IS  Ga.  551;  Austin 
v.    Tilden,    14   Vt.    325.) 

Xothing  more  than  the  present  interest  of  the  judgment 
debtor  is  passed  by  a  judicial  or  execution  sale,  and  any  inter- 
est in  the  particular  property  sold  that  he  may  acquire  there- 
after is  not  affected  bv  the  sale. 


APPLICATION   OF   THE    PULE   CAVEAT   EMPTOR.  409 

(McArthur  v.  Oliver.  GO  Mich,  fins  —  27  N.  W.  Rep.  689;  Westheimer 
V.  Reed,  15  Neb.  662  —  19  X.  W.  Rep.  626;  Hamilton  v.  Mining  Co., 
33  Fed.  Rep.  562 ;  Vannoy  v.  Martin,  6  Ired.  Eq.  169  —  51  Am.  Dee.  418; 
Morgan  v.  Bouse.  53  Mo.  219;  Osterman  v.  Baldwin,  G  Wall.  116;  Bell 
v.  Flaherty,  45  Miss.  694.) 

In  Case  Judgment  or  Sale  is  Void. 

§  458.  Though  caveat  emptor  is  the  firmly  established  rule 
in  all  judicial  sales,  still  it  has  no  application  to  defects  in  the 
title  of  the  purchaser  caused  by  virtue  of  a  failure  of  the  pro- 
ceeding's of  sale  to  transfer  the  title  to  him,  when  it  might 
have  passed,  but  for  the  latent  inherent  infirmity  and  insuffi- 
ciency of  such  proceedings. 

(Throckmorton  v.  Penee,  121  Mo.  50  —  25  S.  W.  Rep.  843;  Meher 
v.  Cole,  50  Ark.  361  —  7  S.  W.  Rep.  451;  Nichols  v.  Shearon,  49  Ark. 
75  —  4  S.  W.  Rep.  167;  Crippcn  v.  Chappel,  35  Kan.  495  —  11  Pae.  Rep. 
453;  Valle  v.  Fleming.  29  Mo.  152  —  77  Am.  Dee.  557;  McGee  v.  Wallis, 
57  Miss.  638;  Hatcher  v.  Briggs,  6  Ore.  31;  Boykin  v.  Cook,  61  Ala.  472; 
Bynum  v.  Govan,  29  S.  W.  Rep.  1119;  Halsey  v.  Jones,  25  S.  W.  Rep. 
696;  Boggs  v.  Fowler,  1G  Cal.  559  —  76  Am.  Dec.  561;  Burns  v.  Led- 
better.  56  Tex.  282;  Dodd  v.  Nilson.  90  N.  Y.  243;  Goode  v.  Grow,  51 
Mo.  224;  Munday  v.  Kaufman,  48  La.  Ann.  591  — 19  So.  Rep.  619.) 

However,  a  purchaser  at  a  judicial  sale  must  look  to  the 
jurisdiction  of  the  court  granting'  the  order  or  judgment, 
though  the  truth  of  the  record  as  regards  matters  within  its 
jurisdiction  are  indisputable.  Jurisdiction  attaching,  the  rec- 
ord imports  absolute  verity  in -all  collateral  proceedings. 

(Succession  of  Thez.  44  La.  Ann.  46  —  10  So.  Rep.  412;  Frost  v.  At  wood, 
73  Mich.  67  —  41  N.  W.  Rep.  96;  Grevemberg  v.  Bradford,  44  La.  Ann. 
400  —  10  So.  Rep.  7S6;  Bank  v.  Humphreys,  47  111.  227;  Covington  v. 
Ingram,  64  N.  C.  123;  Barker  v.  Kane.  22  How.  14;  Alexander  v.  Nelson. 
42  Ala.  462;  Deguindre  v.  Williams,  31  Ind.  444;  James  v.  Meyor,  41 
La.  Ann.  1100  —  7  So.  Rep.  61S;  Massie  v.  Brady,  41  La.  Ann.  553  —  6 
So.  Rep.  535.) 

So  a  purchaser  of  land  at  a  guardian's  sale  is  bound  at  his 
peril  to  ascertain  whether  sueh  fiduciary  has  full  legal  au- 
thority to  make  a  valid  sale  and  conveyance  of  title  before  he 
buys,  as  in  such  case  the  rule  carcat  emptor  applies  with  un- 
diminished strictness. 

(Leuders  v.  Thomas,  35  Fla.  518  —  17  So.  Rep.  633;  Black  v.  Walton, 
32  Ark.  321;    Guynn  v.  McCauley.   32  Ark.  97.) 


410  VOID  JUDICIAL  AND  EXECUTION  SALES. 

The  rule  obtains  in  all  its  rigor  to  a  purchaser  at  a  tax  sale, 
in  the  absence  of  special  statute  to  the  contrary.  Such  a  pur- 
chaser is  never  considered  as  a  bona  fide  purchaser,  and  should 
his  title  fail,  he  is  without  a  remedy  for  his  loss,  save  such  as 
is  provided  by  statute. 

(Foree  v.  Stubbs,  41  Xeb.  271  —  59  N.  W.  Rep.  798;  Investment  Co. 
v.  Beadle  Co.,  5  S.  Dak.  410  —  59  X.  W.  Rep.  212 :  State  v.  Casteel,  110 
Ind.  174  —  11  X.  E.  Rep.  219;  Barber  v.  Evans,  27  Minn.  92  —  6  X.  W. 
Rep.  445;  Graham  v.  Florida  L.  &  M.  Co..  33  Fla.  356  —  14  So.  Rep. 
796;  Wilmerton  v.  Philips,  103  111.  7S;  McCormick  v.  Edwards.  69  Tex. 
106  —  6  S.  W.  Rep.  32;  Hyde  v.  Supervisors,  43  Wis.  129;  Lynde  v. 
Melrose,  10  Allen.  49.) 

Effect  of  Accident,  Fraud  or  Mistake. 

§  459.  The  purchaser  at  a  judicial  sale  is  entitled  to  relief 
upon  the  ground  of  after-discovered  mistake  in  material  facts, 
or  for  fraud,  when  he  himself  is  not  chargeable  with  negli- 
gence. If  he  does  not  examine  the  record  or  title  himself, 
and  relies  upon  the  statements  of  the  officer  as  to  the  con- 
ditions thereof,  he  is  considered  as  not  free  from  negligence, 
for  he  must  examine  for  himself  or  buy  at  his  peril.  The 
mistake,  to  be  available,  must  be  mutual,  and  not  due  to  cul- 
pable negligence  of  the  purchaser  alone. 

(Redd  v.  Dyer,  83  Va.  331  —  2  S.  E.  Rep.  272;  Norton  v.  Trust  Co.. 
35  Xeb.  466  —  53  X.  W.  Rep.  481 ;  Boorum  v.  Tucker.  51  X.  J.  Eq.  135  — 
26  Atl.  Rep.  456;  Tarr  v.  Robinson.  15S  Pa.  St.  60  —  27  Atl.  Rep.  859; 
Smith  v.  Wortham,   82  Va.   937  —  1   S.  E.   Rep.   331.) 

And  the  mistake  or  fraud  must  be  clearly  and  distinctly 
alleged  and  proven. 

(Gregory  v.  People.  SO  Va.  355;  Hiekson  v.  Rucker,  77  Va.  138;  Hord 
V.  Colbert,  28  Graft.  49.) 

In  the  absence  of  fraud,  imposition  or  excusable  mistake, 
the  maxim  caveat  emptor  applies  with  its  strictest  rigor  in  all 
cases  in  which  there  is  a  complete  or  partial  want  of  title  to 
the  land  in  the  judgment  debtor,  according  to  a  preponderance 
of  judicial  authority. 

(Thomas  v.  Glazner,  90  Ala.  537— S  So.  Rep.  153;  Danly  v.  Rector, 
10  Ark.  211  —  50  Am.  Dec.  242;  Goodbar  v.  Daniel,  8S  Ala.  5S3  —  7 
So.  Rep.  254;  Walbridge  v.  Day,  31  111.  379  —  83  Am.  Dec.  227;  Hand 
v.  Grant,  5  S.  &  M.  508  —  43  Am.  Dec.  528:  Fridley  v.  Sheetz,  9  S.  &  R. 
156  —  11  Am.  Dec.  691;  Smith  v.  Painter.  5  S.  &  R.  223  —  9  Am.  Dec. 
344;  Upham  v.  Hemill,  11  R.  I.  565  —  23  Am.  Rep.  525;   Henderson  v. 


APPLICATION   OF   TIIE   RULE   CAVEAT   EMPTOR.  411 

Overton,  2  Yerg.  394  —  24  Am.  Dec.  492;  Willis  v.  Van  Dyke,  106  Pa. 
St.  Ill;  Alday  v.  Rook  Island  Co.,  45  111.  App.  62;  Johns  v.  Trick.  22 
Cal.  512;  Vattier  v.  Lytic,  6  Ohio,  477;  Methin  v.  Bexley,  18  Ga.  551  ; 
Roberts  v.  Hughes,  81  111.  130  —  25  Am.  Rep.  270;  Holtzinger  v.  Edwards, 
51  Iowa,  383  — 1  N.  \V.  Rep.  600;  Bond  v.  Ramsey,  S9  111.  29;  Long  v. 
Waring,  25  Ala.  025;  Tilley  v.  Bridges,  105  111.  336.) 

Judicial  sales  being  made  by  the  court  in  contemplation 
of  law,  there  is  no  one  who  can  be  held  responsible  in  ease 
the  purchaser  takes  nothing  by  his  purchase,  and  hence,  in 
all  but  exceptional  eases  of  fraud  or  misrepresentation,  and 
justifiable  mistake,  the  rule  applies  with  inexorable  rigidity, 
for  there  is  no  warrant  and  he  who  buys  thereat  musl  assume 
the  risk.  But  on  the  contrary,  if  the  sale  be  tainted  with 
fraud  against  the  purchaser,  or  should  the  functionary  con- 
ducting the  sale,  or  the  execution  creditor,  he  guilty  of  mis- 
representations respecting  the  title,  which  were  relied  on  by 
the  purchaser  who  in  consequence  thereof  is  injured,  the  rule 
will  not  he  enforced,  because  in  such  case  it  has  no  applica- 
tion, but  the  sale  will  be  vacated,  and  if  not  already  distrib- 
uted, the  purchase  money  will  be  refunded  to  him. 

(Williams  v.  Glenn,  87  Ky.  87  —  7  S.  W.  Rep.  610;  Chambers  v.  Coch- 
ran, 18  Iowa,  159;  Webster  v.  Howarth,  S  Cal.  21  —  86  Am.  Dec.  2S7; 
Wingo  v.  Brown,  14  Rich.  L.  103;  Walden  v.  Gridley,  36  111.  523;  Cum- 
mings'  Appeal,  23  Pa.  St.  509;  Auwerter  v.  Mathiot,  9  S.  &  R.  397; 
Rocksell  v.  Allen,  3  McLean,  357;  Strouse  v.  Drennan,  41  Mo.  289; 
Mellen  v.  Boarman,  13  S.  &  M.  100;  Bishop  v.  O'Conner,  69  111.  431 :  Renton 
v.  Maryott,  6  C.  E.  Greene,  123;  Hamilton  v.  Pleasants,  31  Tex.  638; 
Bickley  v.  Riddle,  33  Pa.  St.  276;  Threkels  v.  Campbell,  2  Gratt.  L98; 
Worthington  v.  McRoberts,  9  Ala.  297:  Nutt  v.  Summers,  7s  Va.  164; 
Thomas  v.  Davidson,  76  Va.  338;  Boyce  v.  Strother,  76  Va.  862;  W  atson 
v.  Hoy,  28  Gratt.  69S;  Lindsay  v.  Cooper,  109  Ala.  338  —  19  So.  Rep. 
379.) 

In  chancery  and  probate  sales  the  purchaser  must  make  his 
application  to  be  released  before  confirmation,  or  objed  to 
the  confirmation,  if  he  finds  that  the  defendant,  heir  or  -ward 
has  no  title  or  a  defective  one,  or  the  title  is  incuml 
The  confirmation  is  a  binding  order  on  him,  and  after  its 
entry  he  is  precluded  from  urging  objections  to  the  sale  on 
the  ground  of  defective  or  incumbered  title,  and  avoid  bis 
bid  on  such  grounds. 

(Wilson  v.  While  106  N.  V.  59—  15  X.  E.  Rep.  749;  Shriver  v.  Shriver, 
86  N.  Y.  575;  Orinsby  v.  Terry,  6  Bush,  553;   Kostenbader  v.  Spotts, 


412  VOID  JUDICIAL  AND  EXECUTI0X   SALES. 

80  Pa.  St.  430 ;  Monarque  v.  Monarque,  80  X.  Y.  320 ;  McCahill  v.  Hamil- 
ton, 20  Hun,  388;  Cashion  v.  Fania,  47  Mo.  133;  Bank  v.  Martin,  7  Md. 
342  —  61  Am.  Dec.  350;  Barron  v.  Mullin,  21  Minn.  374;  Dresbach  v. 
Stein,  41  Ohio  St.  70.) 

But  no  relief  will  be  given  to  a  purchaser  from  a  defect  in 
the  title  of  which  he  had  due  notice^  or  was  warned  before 
the  sale  that  the  title  was  in  dispute,  and  therefore,  bought 
with  his  eyes  open  and  hence  negligently.  The  law  pre- 
sumes his  previous  examination  and  satisfaction  as  to  the 
title. 

(Stewart  v.  l;evries,  81  Md.  525  —  32  Atl.  Rep.  2S5;  McAdow  v.  Black, 
4  Mont.  475  —  1  Pac.  Eep.  751;  In  re  Leard's  Estate,  164  Pa.  St.  435  — 
30  Atl.  Pep.  298;  Boro  v.  Harris.  13  Lea,  36;  Mining  Co.  v.  Bank,  7 
Mont.  530  —  19  Pac.  Rep.  210;  Oberthier  v.  Stroud,  33  Tex.  522;  Bressler 
v.  Martin,  133  111.  278  —  24  X.  E.  Rep.  51S;  Hexter  v.  Schneider,  14 
Ore.  1S4  — 12  Pac.  Rep.  668;  Lowe  v.  Rawlins.  S3  Ga.  320  —  10  S.  E.  Rep. 
204;  Boorum  v.  Tucker,  51  X.  J.  Eq.  135  —  26  Atl.  Rep.  456;  Methin 
v.  Bexley.  18  Ga.  551;  Xorton  v.  Taylor,  35  Xeb.  466  —  53  X.  W.  Rep. 
4S1  ;  McC'ully  v.  Hardy.  13  111.  App.  631 ;  Cameron  v.  Logan.  8  Iowa, 
434;  Walton  v.  Reager,  20  Tex.  103;  Rogers  v.  Smith,  2  Ind.  526;  Rob- 
erts  v.   Hughes,    81   111.    130  —  25   Am.    Rep.    270.) 

Purchase  by  Judgment  Creditor. 

§  460.  The  rule  caveat  emptor  has  no  application  where  the 
judgment  creditor  himself  becomes  the  purchaser  at  an  exe- 
cution sale,  where  the  property  levied  upon  and  bought  in 
does  not  belong  to  the  defendant  in  the  execution,  but  to  a 
third  person.  In  such  case  the  purchaser  may  have  the  ap- 
parent satisfaction  of  his  judgment  vacated  and  a  new  exe- 
cution awarded,  upon  the  principle  that  there  is  in  fact  no 
consideration  for  the  satisfaction  and  he  is  not  bound  by  the 
sale  and  apparent  satisfaction  thereby  produced. 

(Whipperman  v.  Dunn.  124  Ind.  349  —  24  X*.  E.  Rep.  166;  Kerchival 
v.  Lanier,  68  Ind.  442 ;  Jones  v.  Blumenstein,  77  Iowa,  361  —  42  X.  W. 
Rep.  321;  Bank  v.  Turney,  7  Humph.  273;  Tudor  v.  Taylor.  26  Vt.  444; 
Ritter  v.  Henshaw,  7  Iowa,  97;  Watson  v.  Reissig,  24  111.  2S1  —  76  Am. 
Dec.  746.) 

But  when  the  defendant  has  some  interest  in  the  property, 
though  not  the  owner  in  fee,  or  has  an  incumbered  interest, 
the  purchaser  must  act  on  his  own  judgment,  and  failing  to 
realize  anything  the  fault  is  attributable  only  to  himself  and 
he  must  abide  the  consequences. 


EIGHT   OF   PURCHASER   TO    REFUSE    PAYMENT.  413 

(Hammsmith  v.  Espey,  19  Iowa,  444;  Jones  v.  Blumenstein,  77  Iowa, 
361  —  42  N.  W.  Rep.  321;  Holtzingcr  v.  Edwards,  51  Iowa,  383  —  1  N. 
W.  Rep.  600.) 

Whore  the  judgment  creditor  becomes  himself  the  pur- 
chaser he  is  chargeable  with  notice  of  any  and  all  material 
facts  evidenced  and  disclosed  by  the  record,  and  if  there  are 
any  irregularities  therein  he  is  conclusively  presumed  to  know 
of  their  existence,  as  well  as  all  those  who  hold  under  him. 

(Smith  v.  Huntoon,  134  111.  24  —  24  N.  E.  Rep.  371:  Morris  v.  Roby, 
73  111.  462;  Boos  v.  Morgan,  130  Ind.  305  —  30  N.  E.  Rep.  141;  Stewart 
v.  Cross,  5  Gilm.  442;  Shirk  v.  Thomas,  121  Ind.  147  —  22  N.  E.  Rep. 
976.) 

RIGHT  OF  PURCHASES  TO  REFUSE  PAYMENT  OF 

HTS  BID. 

When  Judgment  or  Sale  is  Void. 

§  461.  It  is  but  in  accordance  with  natural  justice  that  a 
purchaser  at  a  void  judicial  or  execution  sale  should  be  en- 
titled to  be  released  from  the  obligations  of  his  bid,  if  he  dis- 
covers the  true  nature  of  the  sale  prior  to  the  actual  payment 
of  the  amount.  Manifestly,  if  the  entire  estate  in  the  land 
is  purported  to  be  sold  he  should  have  what  is  purported  to 
be  sold,  and  if  through  w^ant  of  jurisdiction  or  other  infirmity 
such  estate  will  not  pass  to  him  by  the  proceedings  he  ought 
not  to  be  compelled  to  pay,  over  his  timely  objections.  If 
there  are,  for  instance,  several  owners  in  common,  and  juris- 
diction is  "wanting  as  to  one  or  more  of  them,  the  purchaser 
can  not  be  forced  to  pay  the  purchase  price,  because  the  court, 
which  is  the  vendor  in  contemplation  of  law,  can  not  convey 
to  him  the  estate  which  it  assumed  to  deal  with  and  purported 
to  have  sold. 

The  purchaser  has  a  perfect  right  to  suppose  that  pursuant 
to  his  bid  he  is  going  to  become  vested  with  the  title  held  by 
the  defendant,  ward  or  decedent,  for  the  promise  to  transfer 
this  interest  constitutes  the  consideration  to  support  his  bid. 
If  the  judgment,  decree  or  order  of  sale  be  coram  non  judice 
and  void  for  want  of  jurisdiction,  or  in  case  the  deed  pursuant 
to  the  sale  will  not  invest  the  purchaser  with  the  whole  title 
held  by  the  adverse  parties  to  the  action  or  proceeding,  by 
reason  of  some  other  inherent  defect  or  irregularity,  then  it 


414  "\  OID  JUDICIAL  AXD  EXECUTION   SALES. 

is  held  there  is,  in  contemplation  of  law,  a  failure  of  consid- 
eration to  support  the  bid,  which  is  fatal  to  a  proceeding  to 
compel  a  compliance  therewith  on  the  part  of  the  purchaser. 
Upon  general  principles,  no  one  is  bound  when  the  sale  is 
void,  whether  it  be  in  chancery  or  probate,  or  under  execution. 
But  in  the  alternative,  where  there  is  a  defective  title,  or  a 
total  want  of  title,  so  that  in  fact  the  purchaser  obtains  noth- 
ing, notwithstanding  the  proceedings  are  perfectly  regular, 
the  purchaser  must  comply  with  the  payment  of  his  bid  if  he 
permits  the  sale  to  be  confirmed,  as  the  bid  is  made  for  such 
title  as  the  defendant,  ward  or  decedent  may  have,  and  the 
amount,  is  offered  for  such  interest  whether  it  be  the  entire 
interest  in  fee  or  none  at  all.  This  is  the  conclusive  infer- 
ence after  confirmation,  and  for  this  reason  his  objections  must 
be  urged  prior  to  the  making  of  the  confirming  order,  for  the 
rule  that  is  applied  against  him  also  applies  in  his  favor. 

(Humphreys  v.  Wade,  84  Ky.  891  —  1  P.  W.  Rep.  648;  Toole  v.  Toole, 
112  N.  Y.  333  —  19  N.  E.  Rep.  682;  Bird  v.  Smith,  40  S.  W.  Rep.  571; 
Boykin  v.  Cook,  61  Ala.  472 ;  Burns  v.  Ledbetter.  56  Tex.  2S2 :  Short  v. 
Porter,  44  Miss.  533;  Barrett  v.  Churchill.  IS  B.  Mon.  3S7;  Crouter  v. 
Crouter,  133  X.  Y.  55  —  30  XT.  E.  Rep.  726;  Williams  v.  Glenn,  87  Ky. 
8  — 7  S.  W.  Rep.  610;  Bank  v.  Martin,  7  Md.  342  —  61  Am.  Dee.  350; 
Threkelds  v.  Campbell,  2  Gratt.  198  —  44  Am.  Dee.  3S4 ;  Yoeum  v.  Fore- 
man, 14  Bush,  494;  Burns  v.  Hamilton,  33  Ala.  210—70  Am.  Dec.  570; 
Tilley  v.  Bridges,  105  111.  336;  Bartee  v.  Thompkins,  4  Sneed.  623;  Boggs 
v.  Hargraves,  16  Cal.  559 — 76  Am.  Dec.  561;  Thompson  v.  Munger, 
15  Tex.  523  —  65  Am.  Dec.  176;  Owen  v.  flatter.  26  Ala.  547  —  62  Am. 
Dec.  745;  Jones  v.  Warnock,  67  Ga.  484;  Bassett  v.  Lockhart,  60  111. 
164;  Dodd  v.  Xilson,  90  N.  Y.  243;  Smith  v.  Brittain,  3  Ired.  Eq.  347; 
Post  v.  Leet,  8  Paige,  337;  Den  v.  Zellers,  7  N.  J.  L.  153;  McGowen  v. 
Wilkins,  1  Paige,  120.) 

If  the  title  fails  on  account  of  defects  in  the  proceeding-  of 
sale  and  he  has  paid  his  money  he  has  a  clear  equity  to  be 
reimbursed  for  his  payment  which  was  utilized  in  the  ex- 
tinguishment of  debts  and  charges  against  the  property. 

(Cunningham  v.  Anderson,  107  Mo.  371  —  17  S.  W.  Rep.  972;  Metier 
v.  Cole,  50  Ark.  361  —  7  S.  W.  Rep.  451;  Nichols  v.  Shearon,  49  Ark. 
75  —  4  S.  W.  Rep.  167.) 

If  Purchaser  Bought  with  Notice  Can  not  Resist. 

§  402.  If  the  purchaser  buys  with  full  notice  of  the  exist- 
ence of  defects  in  or  incumbrances  upon  the  title,  he  can  not 
evade  the  consequences  of  his  purchase  by  a  repudiation  and 


EIGHT   OF    PURCHASES    TO    EEFUSE    PAYMENT.  415 

abandonment  of  the  sale,  because,  owing-  to  his  own  culpable 
negligence  in  buving  when  he  know  the  title  was  not  what  the 
court  assumed  to  transfer,  he  will  not  get  a  perfect  title  and 
must  pay  in  any  event.  The  wholesome  maxim  mr<at 
emptor  applies  to  him  in  all  its  inexorable  rigidity,  and  the 
sale  will  be  confirmed,  his  objections  to  the  contrary  notwith- 
standing. 

(Stewart  v.  Devries,  81  Md.  525-32  Atl.  Rep.  285;  Johnson  v.  Lay- 
bourn,  56  Minn.  332-57  N.  W.  Rep.  933;  Riggs  V.  Purcell,  66  N.  Y. 
103.) 

But  on  the  contrary  it  is  hold  that  whore  the  entire  interest 
is  offered  and  it  fads' in  a  substantial  degree  by  reason  of  in- 
cumbrances or  equities  affecting  the  title,  the  sale  being  made 
without  reservation  of  any  proportionate  interest,  the  pur- 
chaser is  not  bound  if  he  had  no  notice  of  such  incumbrance 
or  equities  impairing  the  interest  ostensibly  sold. 

(Edney  v.  Edney,  SO  N.  C.  81;  Fryer  v.  Rockefeller,  63  N.  Y.  268; 
In  re  Box,  11  Wash.  90  —  39  Pac.  Rep.  240;  Seaman  v.  Hicks,  S  Paige, 
655.) 

Negligence  of  Purchaser  Precludes  Resistance. 

§  463.  That  there  is  a  defect  in  the  title  is  not  a  defense  if 
the  purchaser  was  negligent  in  not  ascertaining  the  true  con- 
dition of  the  facts  concerning  me  title  to  the  property,  even  if 
ho  had  no  actual  knowledge  of  the  defect.  In  this  regard 
the  court  of  chancery  in  New  Jersey  in  a  comparatively  late 
ease  observes:  "The  sale  was  fairly  and  regularly  eon- 
ducted,  and  no  imputation  is  made  against  the  officer  who 
made  it,  nor  against  any  other  person.  If  the  petitioner  acted 
under  a  mistake,  he  alone  is  responsible  for  it.  He  neither 
sought  information  by  examination  nor  inquiry.  His  mis- 
apprehension was  entirely  the  result  of  his  own  carelessness 
and  inattention  to  his  interests  ". 

(Sullivan  v.  Jennings,  44  N.  J.  Eq.  11-14  Atl.  Rep.  104.) 

No  fraud,  misconduct  or  deception  appearing  to  have  boon 
practiced  on  the  purchaser,  by  the  officer  or  anyone  connected 
with  the  sale,  and  there  is  no  showing  that  he  has  been  mis- 
led by  them,  nor  surprised,  the  court  will  confirm  the  sale, 
when  the  only  reason  for  denial  of  confirmation  is  the  protec- 
tion of  the  purchaser  against  his  own  culpable  negligence, 


416  VOID  JUDICIAL  AND  EXECUTION   SALES. 

where  he  is  not  laboring  under  disability  to  protect  his  own 
rights  at  the  sale. 

(Barling  v.  Peters,  134  111.  606  —  25  N.  E.  Rep.  765;  Latimer  v. 
Wharton,  41  S.  C.  508  —  19  S.  E.  Rep.  855;  Norton  v.  Trust  Co.,  35  Neb. 
466  —  53  N.  W.  Rep.  4S1.) 

Purchaser  is  Chargeable  with  Facts  Disclosed  by  the  Record. 

§  464.  It  has  been  frequently  held  that  inquiry  beyond  the 
decree  to  ascertain  the  necessity  for  the  sale  is  not  required, 
though  the  purchaser  must  see  that  the  court  has  jurisdiction 
to  make  it,  and  if  this  is  affirmatively  shown,  the  verity  of 
the  record  in  other  respects  will  be  presumed  according  to  an 
elementary  rule  of  law. 

(Munday  v.  Kaufman,  4S  La.  Ann.  591  —  19  So.  Rep.  619;  Simmons  v. 
Saul,  138  U.  S.  439  —  11  Sup.  Ct.  Rep.  369 ;  Linman  v.  Riggins,  40  La. 
Ann.  761  —  5  So.  Rep.  49 ;  Marrow  v.  Brinkley,  85  Va.  55  —  6  S.  E.  Rep. 
605.) 

As  a  general  ride  a  purchaser  at  a  judicial  sale  is  chargeable 
with  full  notice  of  any  and  all  material  facts  evidenced  and 
disclosed  by  the  record  of  the  proceedings  under  which  he 
buys,  and  the  law  will  presume  that  he  has  examined  the  same 
prior  to  participating  in  the  sale  and  becoming  a  bidder. 
Accordingly,  if  the  proceedings  exhibit  an  infirmity  fatal  to 
his  title,  he  must  abide  the  consequences,  as  his  negligence 
militates  against  the  doctrine  upon  which  relief  is  furnished. 

(Webber  v.  Clark,  136  111.  256  —  26  N.  E.  Rep.  360;  Smith  v.  Huntoon, 
134  111.  24  —  24  N.  E.  Rep.  371 ;  Norton  v.  Trust  Co.,  35  Neb.  466  —  53 
N.  W.  Rep.  481;  Dennerlein  v.  Dennerlein,  111  N.  Y.  518  —  19  N.  E. 
Rep.  85;  Roberts  v.  Hughes.  81  111.  130  —  25  Am.  Rep.  270;  Hooper  v. 
Sastetter.  45  Neb.  67  —  03  N.  W.  Rep.  135;  In  re  Leard's  Estate,  164 
Pa.  St.  435  —  30  Atl.  Rep.  298;  Stewart  v.  Devries.  81  Md.  525  —  32  Atl. 
Rep.  285;  Williamson  v.  Jones,  43  W.  Va.  562  —  27  8.  E.  Rep.  411;  Nye 
v.  Fahrenholz,  49  Neb.  276  —  68  N.  W.  Rep.  498;  Frost  v.  Atwood,  7'. 
Mich.  67  —  41  N.  W.  Rep.  96;  Stewart  V.  Matheny,  66  Miss.  21  —  5  So. 
Rep.  387;  Stout  v.  Manufacturing  Co..  41  W.  Va.  339  —  23  S.  E.  Rep. 
571;  Wood  v.  Krebbs,  30  Gratt.  708;  Burwell  v.  Fauber.  21  Gratt.  446. 

Though  he  will  be  released  from  liability  if  there  is  a  mis- 
take in  the  description  of  the  property  offered  for  sale,  if  the 
enforcement  of  the  terms  of  sale  would  be  unconscionable. 

(Pope  v.  Erdman,  17  S.  W.  Rep.  145;  De  Haven's  Appeal,  106  Pa.  St. 
612.) 


EIGHT   OF   PURCHASES   TO   REFUSE   PAYMENT.  417 

If  Purchaser  Has  Been  Deceived  He  May  Refuse. 

§  405.  If  upon  the  purchaser's  application  to  lie  released 
from  paying  the  amount  of  his  l>i<l  it  is  made  to  appear  that 
he  has  been  deceived  or  misled  resulting  in  his  pecuniary  in- 
jury, the  court  will  interpose  and  relieve  him  from  the  con- 
sequences of  such  deception,  if  application  therefor  is  made 
before  confirmation.  It  is  a  general  rule  that  a  purchaser 
at  a  judicial  sale  can  not  be  forced  into  a  compliance  with  the 
terms  of  his  bid,  nor  compelled  to  pay  any  deficiency  at  a 
resale,  where  his  bid  was  the  result  of  a  mistake  induced  by 
the  selling  officer  or  auctioneer  and  he  is  not  himself  charge- 
able with  negligence  in  failing  to  ascertain  the  true  condition 
of  facts  which  environ  the  transaction. 

(Hammond  v.  Cailleaud,  111  Cal.  206  —  43  Tac.  Rep.  fii)7:  Clay  v. 
Kagelmacher,  9S  Ga.  149  —  26  S.  E.  Rep.  493;  De  Haven's  Appeal,  106  Pa. 
St.  612;  Renton  v.  Maryott,  21  N.  J.  Eq.  123;  Preston  v.  Fryer.  38  Md. 
221;  Glenn  v.  Clapp,  11  G.  &  J.  1;  In  re  Leard's  Estate,  164  Pa.  St.  4:j:»  — 
30  Atl.  Rep.  298.) 

May  the  Purchaser  Demand  a  Marketable  Title. 

§  466.  In  some  states  the  rule  is  announced  that  the  pur- 
chaser at  a  judicial  sale  is  not,  as  a  matter  of  law,  entitled  to 
a  marketable  title,  but  must  content  himself  with  such  title 
as  the  proceedings  in  the  case  will  confer  upon  him,  and  he 
can  not  evade  the  payment  of  his  bid  because  this  is  not  a  per- 
fect title. 

(Booriim  v.  Tucker,  51  N.  J.  Eq.  135  —  26  Atl.  Rep.  456;  -Norton 
V.   Trust  Co.,  35  Neb.   466  —  53   N.  W.   Rep.   4S1.) 

While  in  Pennsylvania  the  rule  seem-  to  be  that  a  pur- 
chaser at  a  judicial  sale  who  has  no  notice  of  any  defect  in 
the  tiile  and  who  is  free  from  any  imputations  of  negligence 
can  not  be  compelled  to  accept  a  doubtful  title,  nor  one  which 
the  court  can  not  warrant  to  him,  the  question  being  not 
whether  the  titl"  is  good,  but  rather  that  it  is  clearly  so,  and  it 
is  not  (dearly  so  when  its  condition  invites  litigation. 

(Kostenbader  v.  Sputis.  80  Pa.  St.  130;  Speakman  v.  Forepaugh,  44 
Pa.  St.  363;  Bumberger  v.  Clippenger,  .">  \Y.  &  S.  311.) 

And  in  New  York  it  is  held  thai  the  purchaser  has  a  right 
to  expect  and  demand  a  marketable  title  and  one  free  from  a 
reasonable  doubt  as  to  its  validity  before  he  can  be  compelled 
to  pay  his  bid.     We  are  at  a  loss  to  see  how  this  ruling  can  be 

27 


418  VOID  JUDICIAL  AND  EXECUTION  SALES. 

harmonized  with  the  rule  caveat  emptor,  but  such  are  the  de- 
cisions of  that  state. 

(Crouter  v.  Crouter,  133  N.  Y.  55  —  30  N.  E.  Rep.  726;  Miller  v. 
Wright,  109  N.  Y.  194  —  16  N.  E.  Rep.  205 ;  Fleming  v.  Burnham,  100 
N.  Y.  1  —  2  N.  E.  Rep.  905;  Cambrelling  v.  Purton,  125  N.  Y.  610  — 
26  N.   E.   Rep.  907;   Jordan  v.   Poillon,   77  N.   Y.   518.) 

Purchaser  a  Party  to  Proceedings  and  May  be  Compelled  to  Pay. 

§  467.  It  is  a  settled  principle  of  law  that  a  purchaser  at  a 
judicial  sale,  by  virtue  of  his  bid,  submits  himself  to  the  juris- 
diction of  the  court  in  all  matters  relating  to  the  sale,  and  to 
that  extent  becomes  a  party  to  the  proceedings  of  sale.  Pur- 
suant to  the  general  principle  of  equity  jurisprudence,  when 
a  party  submits  himself  to  the  court  for  the  purpose  of  per- 
forming, and  who  undertakes  to  do,  any  particular  thing  or 
act  under  its  orders  or  directions,  in  case  of  refusal  may  be 
compelled,  in  the  court  wherein  the  proceedings  are  pending, 
to  do  what  he  has  undertaken.  After  confirmation  he  is  con- 
sidered the  lawful  purchaser,  when  he  may  be  compelled  to 
comply  with  the  terms  of  his  bid  by  process  of  court.  Some- 
times this  result  is  accomplished  in  a  summary  manner  upon 
motion  for  a  rule  on  the  purchaser  bringing  him  into  court  by 
attachment. 

(Maul  v.  Hellman,  39  Neb.  322  —  58  N.  W.  Rep.  112;  Boorum  v. 
Tucker.  51  N.  J.  Eq.  135  —  26  Atl.  Rep.  456:  Andrews  v.  O'Mahoney, 
112  N.  Y.  567  —  20  N.  E.  Rep.  374;  Gregory  v.  Tingley,  18  Neb.  318  —  25 
N.  W.  Rep.  88;  Robertson  v.  Smith.  94  Ya.  250  —  26  S.  E.  Rep.  579;  Har- 
bison v.  Timmons,  139  111.  167  —  2S  N.  E.  Rep.  982;  Alfred  v.  McGahagan, 
21  So.  Rep.  802;   Camden  v.  Mayhew,  129  U.   S.  73  —  9   Sup.   Ct.   Rep. 

246;  McCarter  v.  Finch,  55  N.  J.  Eq. 36  Atl.  Rep.  937;   Thrifts  v. 

Fritz,  101  111.  464;  Vance  v.  Foster,  9  Bush,  389;  Cazet  v.  Hubbel,  36 
N.  Y.  677;  Thornton  A'.  Fairfax,  29  Graft.  669;  Warfield  v.  Dorsey, 
39  Md.  299;  Requa  v.  Rea,  2  Paige,  339;  Silvernail  V.  Campbell,  25  N. 
J.  Eq.  465;  Blackmore  v.  Baker,  2  Swan,  340;  Hill  v.  Hill,  58  111.  239.) 

Purchaser  is  liable  for  Deficiency  on  a  Resale. 

§  4G8.  In  Alabama  it  is  held  that  in  order  to  hold  a  default- 
ing purchaser  to  the  consequences  of  his  bid  and  his  refusal 
to  pay,  no  notice  of  further  proceedings  need  be  extended  to 
him,  upon  the  theory  that  being  at  least  a  quasi  party  to  the 

•ceedings  by  reason  of  his  bid  he  took  upon  himself  and  is 
charged  with  notice  of  all  further  proceedings  upon  his  failure 
of  compliance  therewith.     Upon  a  compliance  he  might  have 


EIGHT  OF  PUECHASEB  TO   RECOVEB   MONEY   PAID.         419 

demanded  notice  of  any  proceedings  affecting  his  purchase, 
but  by  his  failure  he  has  forfeited  such  right  and  assumed 
the  consequences  resulting  from  his  default,  submitting  his 
dereliction  to  the  'court  for  disposal  pursuant  to  the  course  of 
law. 

(Grbl  v.  Randolph,   108  Ala.  601  —  18  So.    Rep.   609.) 

Rut  in  other  states  notice  of  a  resale  must  be  served  upon 
the  defaulting-  purchaser  before  he  can  be  held  liable  for  any 
deficiency  on  a  resale. 

(Hill  v.  Hill,  58  111.  239;  Hammond  v.  Cailleaud,  111  Cal.  206  —  43  Pac. 
Rep.  607;  Harbison  v.  Timmons,  139  111.  167  —  28  N".  E.  Rep.  982;  Stout 
v.  Phillips  Mfg.  Co.,  41  W.  Ya.  339  —  23  S.  E.  Rep.  571;  ('has,,  v. 
•Join.;-,  s^  Tenn.  761  —  14  S.  W.  Rep.  331;  Thrifts  v.  Pritz,  loi  [11.  464; 
Wood  v.  Mann.  3  Sunnier,  318;  Cooper  y.  Hepburn,  15  Gratt.  551.) 

To  hold  the  purchaser  liable  for  the  deficiency  on  a  resale, 
the  second  sale  must  he  made  upon  substantially  similar  terms 
as  the  first,  or  else  there  is  no  liability,  for  where  the  resale  is 

not  on  the  same  terms  with  the  first  the  basis  is  shifted  and 
the  first  purchaser  can  not  be  held  liable. 

(Ramsey  v.  Hersker,  153  Pa.  St.  480  —  26  All.  Rep.  4:;:; ;  Weasl  v. 
Derrick,  100  Pa.  St.  509;  Singerly  v.  Swain,  33  Pa.  St.  102;  J5arnes  v. 
Gordon.  9  Pa.  St.  4L><3.) 

After  confirmation  of  the  sale  and  a  non-compliance  with 
the  terms  of  his  bid,  the  purchaser  is  liable  for  a  deficiency  on 
a  resale,  both  in  chancery  and  probate  sales. 

(Pierson  v.  Fisk,  99  Mich.  43  —  57  N.  W.  Rep.  1080;  Le  Moyne  v. 
Hardin,  132  111.  23  —  23  N.  E.  Rep.  414;  .Mount  v.  Brown,  33  Miss.  566; 
Townshend  v.  Simon,  38  N.'J.  L.  239;  Campe  v.  Saucier,  68  Miss.  278 
—  S  So.  Rep.  846;  Chase  v.  Joiner,  88  Tenn.  Till  —  14  S.  \Y.  Rep.  331; 
Tyler  v.  Guthrie,  33  S.  W.  Rep.  934;  Stout  v.  Manufacturing  Co.,  41 
\V.  Ya.  339  —  23  S.  E.  Rep.  571;  Capron  v.  Devries,  83  Md.  220  —  34 
Atl.  Rep.  251.) 

EIGHT  OF  PURCHASER  TO  RECOVER  MONEY 

PAID. 

Rule  Caveat  Emptor  Affecting  Recovery. 

§  400.  It  is  a  well-settled  proposition  that  the  rule  caveat 
emptor  applies  with  all  its  rigor  to  execution  and  judicial  sales. 
and  if  this  is  the  rule,  the  further  rule  that  the  purchaser  may 
require  either  one  or  the  other  of  the  parties  to  indemnify 


420  VOID  JUDICIAL  AXD  EXECUTION   SALES. 

• 

him,  for  the  purchase  money  he  has  expended,  when  he  has 
received  no  title  by  virtue  of  the  sale,  is  irreconcilably  incon- 
sistent with  the  former.  Upon  principle  it  seems  to  us  that 
reimbursement  can  not  be  exacted  by  the'  purchaser  under 
circumstances  of  this  kind,  unless  by  the  institution  of  an  in- 
dependent action  with  allegations  of  fraud,  collusion  or  mis- 
representation ;  and  in  the  absence  of  these  conditions  the  pur- 
chaser ought  not  to  recover  of  either  of  the  parties  the  money 
he  has  paid  according  to  his  bid,  for  unless  fraud  or  the  like 
is  alleged  and  shown  the  action  is  based  merely  upon  a  mis- 
take of  law,  which  admittedly  is  insufficient  as  a  foundation 
for  relief  whether  at  law  or  in  equity. 

Outside  of  allegations  of  fraud  or  collusion,  or  other  like 
grounds,  the  purchaser  asking  relief  is  restricted  to  a  mis- 
conception of  the  legal  effect  of  the  proceedings  in  the  cause, 
or  that  his  judgment  was  erroneous  as  to  the  judgment  debtor's 
muniments  of  title  to  the  property  bought,  in.  These  are 
manifestly  entirely  insufficient,  in  the  absence  of  special  stat- 
utory provision,  upon  which  to  base  his  claims  for  relief,  when 
keeping  in  mind  the  maxim  caveat  emptor.  Buying  at  his 
peril  at  execution  and  judicial  sales,  when  he  has  not  been 
imposed  upon,  and  in  the  absence  of  excusable  mistake  or 
ignorance  of  material  fact,  not  law,  notwithstanding  he  pays 
his  money  and  gets  nothing,  he  must  abide  the  consequences 
in  silence  and  can  not,  on  principle,  recover  from  either  of 
the  parties  the  amount  of  his  bid  in  an  independent  action. 

(Lindsay  v.  Cooper,  94  Ala.  170  —  11  Sc.  Rep.  325;  Burns  v.  Hamilton, 
33  Ala.  210  —  70  Am.  Dec.  570;  Boggs  v.  Hargraves,  16  Gal.  550  —  76 
Am.  Dee.  561;  Salmond  v.  Price,  1?,  Ohio,  368  —  42  Am.  Dec.  204;  Home 
v.  Nugent,  74  Miss.  102  —  20  So.  Rep.  159;  Laws  v.  Thompson,  4  Jones, 
104;  Lovelace  v.  Webb,  62  Ala.  271;  Bland  v.  Bowie,  53  Ala.  152;  Lore 
v.  MeKenzie,  58  Ala.  115;  Barnham  v.  San  Jose,  24  Cal.  5S5;  The  Monte 
Allegre,  9  Wheat.  616.) 

But  where  the  proceedings  are  utterly  void  it  is  held  in  some 
states  that  the  purchaser  who  has  no  knowledge  of  the  fatal 
infirmities  therein  may  recover  from  the  plaintiff  who  re- 
ceived it,  the  money  he  has  paid  at  the  sale.  Such  suit  is 
maintainable  upon  the  principle  that  by  virtue  of  the  invalid- 
ity of  the  proceedings  there  is  a  total  failure  of  consideration 
and  the  purchaser  may  recover  his  money  upon  familiar  prin- 
ciples of  law.      Though  this  rule  seems  just  and  expedient  it 


RIGHT  OF  PURCHASER  TO  RECOVER  MONEY   FAID.         421 

is  apparently  inapplicable  to  sales  under  execution  in  view  of 
the  rule  ctoveat  emptor. 

(Henderson   v.   Overton,   2   Yerg.   394  —  24  Am.   Dec.   492;    Bank   v. 
Eltinge,  40  X.  Y.  391  —  100  Am.  Dec.  516;  Rheel  v.  lli.es.  25  N.  N, 
Chapman  v.  Brooklyn,  40  X.  Y.  372;  Sehweringer  v.  Hickok,  53  N,  Y. 
2S0;  Flandrow  v.  Hammond,  l  18  X.  Y.  129  —  42  X.  E.  Rep.  511.) 

Reimbursement  Compelled  from  Parties. 

§  470.  In  sales  under  execution  where  by  mistake  the  lands 
of  a  stranger  have  been  levied  upon  and  sold  and  the  pur- 
chaser without  notice  of  such  error  paid  the  amount  of  his 
bid,  proceedings  in  equity  may  in  some  states  be  prosecuted 
for  the  purpose  of  compelling  reimbursement  from  the  de- 
fendant, for  whose  benefit  and  use  the  purchaser  has  paid  his 
money  at  the  sale,  and  by  means  of  which  payment  the  judg- 
ment against  him  has  been  either  wholly  or  partially  satisfied. 

(McGhee  v.  Ellis,  4  I. ill.  241  —  16  Am.  Dec.  124:  Bunting  v.  Gilmore, 
124  [nd.  113  —  24  X.  E.  Rep.  583;  Reed  v.  Crosthwait,  6  Iowa,  219  —  71 
Am.  Dec.  406;  Burns  v.  Ledbetter,  56  Tex.  282;  Muir  v.  Craig,  3  Blackf. 
293  —  25  Am.  Doc.  Ill;  Warner  v.  Helm.  1  Gilm.  220;  Julian  v.  Beal, 
26  Ind.  220  —  89  Am.  Dec.  460:  Harrison  v.  Shanks.  13  Bush,  620:  Jones 
v.  Henry,  3  Litt.  435;  Trice  v.  Boyd,  1  Dana.  436;  Howard  v.  North. 
5  Tex.  290  —  51  Am.  Dec.  769;  Hawkins  \.  Miller,  26  End.  173:  Porter 
v.  Jackson.  95  Ind.  210;  Wilchowsky  v.  Cavender,  7;.'  Mo.  192;  .Mr I. ran 
v.  Martin,  45  Mo.  393;  .Muir  v.  Berkshire,  52  Ind.  149;  Willson  v.  Brown, 
82  Ind.  471;  Westerfield  v.  Williams,  59  Ind.  221;  Richmond  v.  Marston, 
15  Ind.  134:  Jones  v.  Blumenstein,  77  Iowa.  361  —  42  N.  W.  Rep.  321; 
Hitchcock  v.  Caruthers,  100  Cal.  100  —  34  Pac.  Rep.  627.) 

In  ease  of  failure  of  title  because  of  defective  proceedings 
due  to  the  negligence  of  the  selling  officer  in  an  execution 
sale,  the  law  in  some  states  permits  the  purchaser  to  prosecute 
his  action  in  damages  against  the  delinquent  sheriff  com- 
pelling him  to  respond  in  pecuniary  compensation  for  his  de- 
linquency. 

(Sexton  v.  Nevers,  20  Tick.  451  —  32  Am.  Dec  225;  McGhee  v.  Ellis, 
4  Litt.  244  —  16  Am.  Dec.  124;  Harrison  v.  Shanks,  13  Bush,  620.) 

Reimbursement  as  a  Condition  Precedent  to  Recovery  of  Land. 
§  471.  An  eminently  equitable  ride  obtains  in  some  state- 
where  it  is  held  that  if  property  is  purchased  by  a  strangeT 
to  the  proceedings  in  good  faith,  and  under  the  belief  that  he 
airing  the  title,  and  the  sale  fails  because  of  defects  and 
irregularities,  the  defendant  or  heir  can  not  sue  to  recover  it 


422  VOID  JUDICIAL  AND  EXECUTION  SALES. 

until  he  has  first  reimbursed  the  purchaser  in  the  amount  of 
his  payment  at  the  sale  which  was  applied  toward  the  judg- 
ment or  in  satisfaction  of  lawful  claims  or  incumbrances 
against  the  estate.  It  is  conceded  that  under  the  general  rule 
of  law  the  acquisition  of  rights  against  another  is  impossible 
by  the  voluntary  payment  of  his  obligations,  but  it  is  an  ex- 
ception to  this  rule  where  the  debtor's  estate  is  subject  to  be 
sold  lawfully  under  judicial  process  to  satisfy  liens  or  charges 
thereon,  but  where  such  authority  is  prosecuted  irregularly 
or  in  an  illegal  manner. 

(Halsey  v.  Jones.  S6  Tex.  4S8  —  25  S.  AY.  Rep.  696;  Railway  Co.  v. 
Blakeney,  73  Tex.  180—11  S.  W.  Rep.  174;  Kendrick  v.  Wheeler,  85 
Tex.  247  —  20  S.  W.  Rep.  44;  Fisher  v.  Bush,  133  Ind.  315  —  32  N.  E. 
Rep.  924;  Howard  v.  North,  5  Tex.  290—51  Am.  Dec.  769;  Meher  v. 
Cole,  50  Ark.  361  —  7  S.  W.  Rep.  451;  Valle  v.  Fleming,  29  Mo.  152  — 
77  Am.  Dee.  557;  French  a-.  Garnet,  57  Tex.  273.) 

But  this  is  not  the  case  where  the  claim  for  which  judg- 
ment was  given  was  not  a  charge,  lien  or  incumbrance  upon 
the  land,  and  the  proceedings  are  void,  in  which  case  the 
owner  need  not  refund  the  money  as  a  condition  precedent  to 
recovering  the  land  by  suit  in  ejectment. 

(Northcraft  v.  Oliver,  74  Tex.  162  —  11  S.  W.  Rep.  1121;  Stengall  v. 
Huff,  54  Tex.  193.) 

Judgment  Creditor  as  Purchaser. 

§  472.  A  void  sale  being  absolutely  without  legal  efficacy, 
as  a  necessary  corollary,  a  purchaser  thereat  who  buys  and 
pays  his  money,  acquires  no  estate  in  the  property  o-ren-ibly 
sold,  though  he  has  parted  with  his  money.  Upon  principle, 
in  the  event  the  judgment  creditor  becomes  himself  the  pur- 
chaser, he  may  have  the  apparent  satisfaction  of  his  judg- 
ment, caused  by  reason  of  the  sale,  vacated  and  a  new  exe- 
cution awarded.  This  is  done  when  the  title  fails  because  the 
property  levied  upon  was  not  owned  by  the  execution  defend- 
ant. The  reason  for  permitting  the  vacation  of  the  satisfac- 
tion in  <ncli  case  is,  that  there  is  no  consideration  to  the  ap- 
parent satisfaction  and  hence  really  no  satisfaction  at  all. 
The  satisfaction  of  a  judgment  being  in  the  nature  of  a  re- 
ceipt, may  be  explained  by  showing  that  the  defendant  has 
not  paid  anything  of  value. 

(Bresslor  v.  Martin.  133  111.  278  —  24  N.  E.  Rep.  518;  Whipperman 
v.  Dunn,  124  Ind.  349  —  24  N.  E.  Rep.  160;  Hitchcock  v.  Caruthers,  100 


VOID  SALES    RATIFIED    BY    PARTIES   IX    [NTEREST.  423 

Cal  ioo-34  Pac.  Rep.  027;  Muir  v.  Craig,  3  Blaekf.  203-25  Am.  Doc. 
Ill'-  Tudor  v.  Taylor,  26  Vt.  -144;  Wallace  v.  Berdell,  H  Hun,  444; 
Stewart  v.  Armel,  62  Ind.  593;  Adams  v.  Smith,  5  Cow.  380;  Kell  v. 
Worden  110  111.  310;  Merry  v.  Bostick,  13  111.  398  —  54  Am.  Dec.  434; 
Watson  v.  Reissig,  24  111.  281  -  70  Am.  Dec.  746;  Scherr  v.  Himmelmann, 
53  Cal.  312.) 

But  in  North  Carolina  under  provision  of  statute  the  judg- 
ment is  irrc-vocnl.lv  satisfied  and  the  only  remedy  is  one  againsl 
the  defendant  in  the  execution  to  recover  the  amount  of  the 
purchase. 

(Holcombe  v.  Loudermilk,  3  Jones,  491.) 

VOID  SALES  RATIFIED  BY  PARTIES  IN  INTEREST. 

Confirmation  and  Ratification  in  General. 

§  473.  Confirmation  is  a  proceeding  in  judicial  sales  ex- 
clusively applicable  to  either  valid  or  voidable  sales,  and  not 
to  such  as  are  void,  and  therefore  it  is  manifest  that  confirma- 
tion as  a  general  rule  has  no  efficacy  upon  void  estates  what- 
ever. A  sale  which  is  voidable  by  virtue  of  irregularities 
mav  be  validated  by  subsequent  confirmation  by  the  court 
under  whose  order  or  decree  the  sale  was  made.  But  not  so 
in  case  of  a  sale  void  for  want  of  jurisdiction,  in  which  case 
confirmation  has  no  application.  "  If  the  sale  was  void  be- 
cause there  was  no  judgment  authorizing  a  sale  to  be  made,  or 
because  for  any  reason^  the  person  making  it  had  no  authority 
to  make  one,  no  number  of  confirmations  could  make    it 

valid  ". 

(Burrell  v.  Railway  Co..  43  Minn.  363-45  N.  W.  Rep.  S49 ;  Dawson 
v.  Helmes,  30  Minn.  107  —  14  N.  W.  Rep.  462.) 

It  is  then  a  general  rule  that  a  void  act,  sale,  title  or  estate 
is  not  capable"  of  being  validated  by  the  mere  confirmation 
thereof  by  the  court.  But  the  effect  of  this  general  rule  is 
limited  bv  exceptions,  and  circumstance  may  arise  when  the 
general  rule  has  no  application,  and  it  is  to  the  consideration 
of  these  exceptions  that  attention  is  presently  invited.  it 
is  unquestionably  settled  beyond  the  cavil  of  dispute  that  a 
void  judicial  or  execution  sale  does  not  fall  exclusively  under 
the  general  rule,  but  may  come  within  the  exceptions  thereto. 
Accordingly,  it  is  settled  that  an  interested  party  to  such  sal- 


424  YOID  JUDICIAL  AND  EXECUTION  SALES. 

may  expressly  ratify  it,  or  may  indirectly  confirm  the  same 
by  virtue  of  his  conduct  estopping  him  from  thereafter  ques- 
tioning the  validity  of  the  same. 

(Wilmore  v.  Stettler.  137  Ind.  127  —  34  N.  E.  Rep.  357;  Iron  Co.  v. 
Fullenwider,  87  Ala.  5S4  —  6  So.  Rep.  197;  Fallon  v.  Worthington,  13 
Colo.  559  —  22  Pac.  Rep.  960;  Tracey  v.  Roberts.  88  Me.  310  —  34  Atl. 
Rep.  68;  Maple  v.  Kusart,  53  Pa.  St.  349  —  91  Am.  Dec.  214;  Deford 
v.  Mercer.  24  Iowa,  US  —  92  Am.  Dec.  460;  Pursley  v.  Hays,  17  Iowa, 
310;  Johnson  v.  Cooper,  56  Miss.  608.) 

Equitable  estoppels  apply  where  the  proceeds  received  arise 
from  a  sale  under  the  forms  of  law  as  well  as  where  they 
spring  from  the  act  of  the  parties,  and  the  application  of  the 
principle  does  not  depend  on  any  supposed  distinction  between 
sales  that  are  void  and  such  as  are  voidable  only,  but  obtains 
in  either  case  under  certain  conditions. 

(Hazel  v.  Lyden,  51  Kan.  233  —  32  Pac.  Rep.  89S;  Spragg  v.  Shriver. 
25  Pa.  St.  282  —  64  Am.  Dec.  698;  Smith  v.  Worden,  19  Pa.  St.  424; 
Mitchell  v.  Freedley,  10  Pa.  St.  20S.) 

It  is  a  firmly  settled  and  elementary  rule  of  estoppel  that 
if  one  with  knowledge  accepts  the  proceeds  of  an  unauthorized 
sale  of  his  property  he  is  thereafter  precluded  from  disputing 
the  validity  of  such  unauthorized  sale. 

(Karns  v.  Olney,  80  Cal.  90  —  22  Pac.  Rep.  57;  Wilmore  v.  Stettler. 
137  Ind.  127  —  34  N.  E.  Rep.  357;  Goodman  v.  Winter,  64  Ala.  410  —  38 
Am.  Rep.  13;  Moore  v.  Hill,  85  K  C.  218.) 

Notwithstanding  the  court  had  no  jurisdiction  over  the  sub- 
ject-matter, one  who  accepts  and  retains  the  fruits  thereof, 
under  familiar  principles  of  equitable  estoppel,  is  thereafter 
prevented  from  impeaching  or  denying  its  validity  as  against 
himself. 

(Irrigation  Co.  v.  Middough,  12  Colo.  434  —  21  Pac.  Rep.   565.) 

But  upon  principle  and  reason  it  is  essential  to  a  valid  rati- 
fication that  the  party  making  it  and  who  is  to  be  concluded  by 
it  is  cognizant  of  the  facts  with  which  the  transaction  is  en- 
vironed. 

(Dorlargue  v.  Cress.  71  111.  380;  Borders  v.  Hodges,  154  111.  49S  —  39 
N.  E.  Rep.  597:  Holcomb  v.  P.oynton,  151  111.  294  —  37  N.  E.  Rep.  1031; 
Davidson  v.  Young,  38  111.  145;  Schnell  v.  Chicago,  38  111.  382;  Brewer 
v.    Nash,    15  R.    I.    458  —  17    Atl.    Rep.    857.) 

In  Towa  it  is  held  that  the  successful  use  of  a  void  judg- 
ment in  resisting  an  action  subsequently  brought  on  the  origi- 


VOID  SALES  RATIFIED    BY    PARTIES   IN    INTEREST.  L25 

nal  claim  precludes  the  party  fro  "ting  its  invalidity 

thereafter  when  it  is  sought  to  be  enforced, 

(District  v.  District,  69  Iowa.  88  —  28  X    W.  Rep.  449.) 

while  on  the  other  hand  it  is  held  in  New  Hampshire  that  the 
party  is  not  estopped  from  subsequently  asserting  the  invalid- 
ity of  the  judgment,  though  it  seems  to  us  the  contention  is 
unsound  on  principle,  as  the  law  will  not  tolerate  such  oscilla- 
tion in  its  administration. 

(Wilbur  V.  Abbot.  60  X.  H.  40.) 

Ratification  by  Receipt  of  Proceeds  in  Execution  Sale. 

§  474.  As  a  general  rule  the  retention  by  the  defendant  of 
the  whole  or  a  part  of  the  proceeds  of  a  sale  under  execution 
is  irreconcilably  inconsistent  with  a  repudiation  of  the  same, 
and  the  law  will  not  tolerate  repudiation  of  a  sale  under  exe- 
cution  on  the  part  of  the  owner  or  his  successor  in  interest, 
when  they  have  enjoyed  such  proceeds,  for  they  will  be  con- 
sidered to  have  irrevocably  confirmed  the  sale,  precluding 
subsequent  attack  thereon. 

(O'Kelly  v.  Gholston.  89  Ga.  1  — 15  S.  E.  Rop.  123;  France  v.  Haynes, 
67  Towa,  139  —  25  N.  W.  Rep.  98;  State  v.  Stanley,  14  [nd.  409;  Crowell 
v.  Mcfonkey,  5  Pa.  St.  168;  Huffman  v.  Gaiu.-<,  17  Ark.  2:27:  McLeod 
v.  Johnson,  28  Miss.  374;  Sittig  v.  Morgan,  5  l.a.  Ann.  574:  Stroble  v. 
Smith.  8  Watts,  280;  Headen  v.  Oubre,  2  La.  Ann.  142;  Southard  v. 
Perry.   21   Iowa,   488  —  89   Am.    Dec.    587.) 

Thus,  where  a  levy  on  land  under  execution  was  made 
which  was  void  for  uncertainty,  and  the  defendant  in  the 
execution,  being  mentally  competent  to  consent,  to  the 
was  present  and  gave  his  consent,  receiving-  the  benefit  of  the 
proceeds  arising  therefrom  in  application  of  the  same  to  the 
satisfaction  of  the  whole  or  in  part  of  a  valid  judgment  against 
him,  such  defendant  or  his  administrator  is  bound  thereby 
under  the  beneficent  principles  of  equitable  estoppel. 
(O'Kelly  v.  Gholston,  89  Ga.  1  —  15  S.  E.  Rep.  12?..) 

Chancery  and  Probate  Sales  Ratified  by  Receipt  of  Proceeds. 

§  4  75.  As  in  <ales  under  execution  s<>  in  sales  by  adminis- 
trator-, executors  and  guardians,  the  receipt  and  retention  of 
the  proceeds  or  r.  portion  thereof,  by  the  heir  or  ward,  when 
competent  to  act  for  themselves,  is  an  irrevocable  ratification 
of  the  sale,  for  it   i-  deemed  unconscionable  thai   the  heir, 


426  VOID  JUDICIAL  AND  EXECUTION  SALES. 

devisee  or  ward  should  reap  the  fruits  of  the  purchaser's  pay- 
ment of  money,  appropriated  to  the  discharge  of  debts  or  the 
like,  winch  were  a  lawful  charge  on  the  land,  and  at  the  same 
time  be  permitted  to  recover  the  same.  This  is  a  principle 
which  is  applied  to  minors  as  well  as  to  adults,  and  they  are 
estopped  to  deny  the  validity  of  the  sale  so  long  as  they  enjoy 
the  benefits  derived  from  the  appropriation  of  the  purchase 
money.  They  can  not  accept  the  benefits  of  the  sale  and 
simultaneously  repudiate  it  as  nugatory,  and  this  upon  the 
principle  that  while  accepting  the  benefits  they  must  bear  the 
burdens  of  the  transaction. 

(Iron  Co.  v.  Fullenweider,  87  Ala.  5S4  —  6  So.  Rep.  197;  Maple  v. 
Kusart,  53  Pa.  St.  348  —  91  Am.  Dec.  214;  Wilmore  v.  Stettler,  137  Ind. 
127—34  N.  E.  Bep.  357;  Tracy  v.  Roberts,  88  Me.  310  —  34  Atl.  Rep. 
68;  Oden  v.  Dupuy,  99  Ala.  36  —  11  So.  Rep.  419;  Halsey  v.  Jones,  S6 
Tex.  488  —  25  S.  W.  Rep.  690;  Meher  v.  Cole,  50  Ark.  301  —  7  S.  W. 
Rep.  451;  Kendrick  v.  Wheeler,  85  Tex.  247  —  20  S.  W.  Rep.  44:  Palmer- 
ton  v.  Hoop,  131  Ind.  23  —  30  X.  E.  Rep.  874;  Craemer  v.  Holbrook,  99 
Ala.  52  —  11  So.  Rep.  830;  Deford  v.  Mercer,  24  Iowa,  118  —  92  Am.  Dee. 
460;  Jennings  v.  Kee,  5  Ind.  257;  Walker  v.  Mulvean,  70  111.  18:  Handy 
v.  Xoonan,  51  Miss.  166;  Parmelee  v.  McGinty,  52  Miss.  475;  Robertson 
v.  Bradford,   73  Ala.   116.) 

But  a  doctrine  seemingly  at  variance  with,  this  is  main- 
tained in  several  states,  under  which  the  minors  after  becom- 
ing of  age,  may  collaterally  impeach  the  sale  of  lands  by  their 
guardian,  the  sale  being  void,  though  they  have  received  the 
proceeds  of  the  sale  for  their  maintenance  and  education;  this 
upon  the  ground  that  as  infants  they  could  have  had  no  part 
in  the  proceedings. 

(Bachelor  v.  Korb,  78  X.  W.  Rep.  485;  Wilkinson  v.  Filby.  2!  Wis. 
441:  Requa  v.  Holmes,  26  X.  Y.  338;  Bowe  v.  Griffiths,  78  X.  W. 
Rep.   20.) 

If  the  mortgagor  receives  and  accepts  the  surplus  from  a 
sale  of  the  incumbered  premises  although  ignorant  of  the 
infirmities  of  the  sale,  and  if,  after  becoming  cognizant  of 
the  defects,  retains  such  surplus,  he  is  precluded  from  denying 
the  title  of  the  purchaser  under  the  principles  of  estoppel. 
Enjoyment  of  the  benefits  and  repudiation  being  inconsistent^ 
he  can  not  claim  or  assert  both  simultaneously. 

(Brewer  v.  Nash,  16  R.  I.  458  — 17  Atl.  Rep.  857;  Colton  v.  Rupert. 
60  Mich.  318  —  27  X.  W.  Rep.  520;  Brewer  v.  Nash,  17  R.  I.  793  —  24 
Atl.  Rep.  832;  Southard  v.  Perry,  21  Iowa,  488  —  89  Am.  Dec.  5S7.) 


VOID  SALES   RATIFIED   BY   PARTIES   IX    INTEREST.  427 

So  in  sales  in  partition  and  other  judicial  sales,  a  co-tenant, 
heir  or  defendant  can  not  claim  and  receive  his  proportionate 
share  of  the  proceeds  and  at  the  same  time  repudiate  the 
proceedings  by  his  denial  of  the  validity  thereof. 

(Fisher  v.  Siekraan,  125  Mo.  165  —  28  S.  W.  Rep.  435;  Lemonds  v. 
Stratton,  5  Tex.  Civ.  App.  403  —  24  S.  W.  Rep.  370;  McClanahan  v.  West, 
100  Mo.  309—  13  S.  W.  Rep.  674;  Young  v.  Walker,  70  Miss.  813  —  12 
So.  Rep.  546;  Galbraith  v.  Howard,  32  S.  W.  Rep.  803;  Tooley  v.  Gridley. 
3  S.  &  M.  493  —  41  Am.  Dec.  62S;  Merritt  v.  Home,  5  Ohio  St.  307  —  67 
Am.   Dec.   298;    Corwin   v.    Shoup,    76   111.    246.) 

Upon  a  similar  principle,  the  owner  of  land  sold  for  de- 
linquent taxes,  accepting  a  part  of  the  proceeds,  being  cogni- 
zant of  the  facts,  recognizes  and  ratifies  the  validity  of  the 
proceedings  precluding  subsequent  assault  upon  the  grounds 
of  their  invalidity. 

(Clybm-n  v.  McLaughlin,  106  Mo.  521  —  17  S.  W.  Rep.  692.) 

Ratification  by  Conduct  Otherwise  Than  by  Receipt  of 
Proceeds. 
§  476.  A  well-settled  principle  of  equity  forbid-  one  from 
afterward  questioning  the  truth  of  his  representations  made 
at  a  time  when  lie  anticipates  others  would  act  upon  them,  and 
who,  relying  upon  such  representations,  acted  and  reaped  a 
detrimental  result  therefrom. 

(Bank  v.  Frame,  112  Mo.  502  —  20  S.  W.  Rep.  620;  Sehenck  v.  Sautter. 
73  Mo.  46.) 

And  upon  similar  principles  where  the  owner,  standing  by, 
permits  an  innocent  party  to  purchase  his  property  and  does 
not  notify  or  admonish  such  purchaser  of  his  claims,  the 
owner's  subsequent  efforts  to  recover  the  property  or  assert 
his  title  thereto,  will  in  equity  be  considered  fraudulent,  for 
by  his  acquiescence  he  is  estopped  from  asserting  dominion 
over  the  property. 

(Terrill  v.  Weymouth,  32  Fla.  255  — 13  So.  Rpp.  429:  Lindsay  v.  Cooper, 
94  Ala.  IT')— 11  So.  Rep.  325;  Cray  v.  Crockett,  35  Kan.  66-  i  '  Pac. 
Rep.  452;  Tousley  v.  Board,  39  Minn.  419  —  40  N.  W.  Rep.  509:  Thomp- 
son v.  Simpson,"  128  N.  Y.  270  —  28  X.  E.  Rep.  627:  Markham  v. 
O'Connor.  52  Ga.  183  —  21  Am.  Rep.  249;  Storrs  v.  Barker,  6  Johns. 
Ch.  166  —  10  Am.  Dec.  316;  Dewey  v.  field,  4  Met.  381  — 3S  Am.  Doc. 
376.) 

Manifestly,  it  is  the  duty  of  every  defendant  when  his 
property    is    exposed    to   compulsory    sale    under   an    illegal 


428  VOID  JUDICIAL  AND  EXECUTION  SALES. 

coercive  process  of  law,  or  otherwise  illegally  about  to  be  sold 
at  a  judicial  or  execution  sale,  to  interpose  his  objections 
to  such  proceedings,  and  if  he  fails  to  do  this,  but  participates 
in  the  bidding,  or  at  or  before  the  sale  informs  others  that 
the  purchaser  would  get  a  good  title,  he  is  concluded  from 
urging  such  illegality  thereafter,  and  his  conduct  works  an 
estoppel  against  recovering  the  property  or  its  value  from  the 
purchaser. 

(Mock  v.  Stuckey,  96  Ga.  1S7  — 23  S.  E.  Rep.  307;  Allen  v.  Brown, 
83  Ga.  161  —  9  S.  E.  Rep.  674;  Lackey  v.  Pool,  97  Ga.  71S  —  25  S.  E. 
Rep.  174.) 

So  if  the  judgment  is  void  upon  which  the  execution  was 
issued,  the  purchaser  in  good  faith  complies  with  his  bid 
by  paying  the  money,  and  there  is  no  protest  made  by  the 
owner  who  was  present,  and  who  subsequently  surrendered 
possession  of  the  property  to  the  purchaser  and  receiving  the 
proceeds,  and  though  residing  in  the  immediate  vicinity  per- 
mitted the  purchaser  to  construct  valuable  improvements  upon 
the  premises,  he  is  estopped  by  his  conduct  from  denying  the 
purchaser's  title,  though  he  was  ignorant  of  the  illegalities  in 
the  proceedings  at  the  time  the  sale  occurred. 

(Hazel  v.  Lyden,  51  Kan.  233  —  32  Pae.  Rep.  898;  Reichert  v.  Voss, 
78  Ga.  54  —  2  S.  E.  Rep.  558;  Spragg  v.  Shriver,  25  Pa.  St.  283  —  64  Am. 
Dec.  698.) 

Nor  is  it  absolutely  essential  that  the  execution  defendant 
should  actually  receive  the  whole  or  even  any  portion  of  the 
money,  as  it  is  sufficient  if  he  is  cognizant  of  the  sale  and 
acquiesces  therein  by  his  failure  to  object  thereto,  and  by  his 
consent  in  the  application  of  the  proceeds  toward  the  payment 
of  his  debts,  he  is  shut  off  from  subsequently  impeaching  the 
sale  upon  the  ground  of  its  invalidity. 

(McComiell  v.  People,  84  111.  583;  Spragg  v.  Shriver.  25  Pa.  St.  281  — 
64  Am.  Dec.  698;  Maple  v.  Kusart,  53  Pa.  St.  348  —  91  Am.  Dec.  214; 
Willard  v.  Willard,  56  Pa.  St.  128;  Mitchell  v.  Freedley,  10  Pa.  St.  208; 
Fallon  v.  Worthington,  13  Colo.  559  —  22  Pac.  Rep.  960.) 

So  it  is  held  that  if  the  defendant  receives  notice  that  his 
property  is  seized  under  an  execution  against  him,  and  ap- 
points an  appraiser  and  makes  no  objections  to  the  sale,  sub- 
Mently  surrendering  possession  of  the  property,  he  ratines 
the  sale. 

(Parson  v.  Henry,  43  La.  Ann.   307  —  8  So.  Rep.  91S.) 


I'l  RCHASEB    IN    CHANCERS     S  \  -  429 

But  is  also  held  thai  where  it  is  nut  in  the  power  of  the 
execution  defendanl  to  prevent  the  distribution  of  the  pro- 
ceeds, the  same  being  appropriated  among  the  judgment 
creditors  by  act  of  law,  he  is  ao1  prejudiced  l>\  the  dis- 
tribution. 

(Henry  v.  McClellan,  146  Pa.  St.  :;i  23  AH.  Rep.  385;  Zuver  v. 
Clark,   n<l   Pa.  St.  222;  Gardner  v.  Sisk,  54   Pa.  St.  508.) 

When  Ratification  by  Minors  Made. 

§  477.  During  the  period  of  infancy  there  can  bo  no  bind- 
ing ratification  made,  as  a  matter  of  course,  whether  in  person 
or  by  some  one  acting  for  the  minor,  and  the  acts  of  the  guar- 
dian, or  such  as  are  sanctioned  by  him,  have  no  binding  < 
cacy  as  a  ratification,  if  they  are  void.  Nor  will  the  fact  that 
the  money  was  expended  for  Lis  use  during  the  period  of  in- 
fancy be  ('univalent  to  a  ratification,  for  he  must  have  an  op- 
portunity to  affirm  or  reject  the  sale  for  himself  when  he 
attain-  the  age  when  he  can  act  for  himself,  when  his  course 
then  taken  binds  him. 

(Tracy  v.  Roberts,  ^s  Mo.  310  —  34  All.  Rep.  68;  Townsend  v.  Tallent, 
33  Cal.  45  — 91  Am.  Dec.  617;  Wilkins  v.  Filby,  24  Wis.  441;  Requa  v 
Holmes,  26  X.  Y.  338;  Longworth  v.  Goforth,  Wright,  192;  Jones  v. 
Ikhi  Co.,  95  Ala.  551  —10  So.  Rep.  635;  Brandon  v.  Brown.  106  111.  519; 
Bachelor  v.  Korb,  7S  X.  W.  485;  Rowe  v.  Griffiths,  78  X.  W.  Rep.  20.) 

Upon  principle  and  common  honesty,  when  a  valid  election 
has  once  been  made  by  an  heir  or  ward  after  attaining-  the 
of  majority,  and  who  i-  competent  to  act,  there  can  be  no  sub- 

[uent  revocation  thereof,  for  having  received  the  money 
from  the  guardian  or  administrator  with  full  knowledge  of 
all  facts  and  withoul  any  attendant  circumstances  of  fraud,  it 
is  tantamounl  to  an  irrevocable  confirmation  of  the  sale. 

(Kingsley  v.  Jordan.  85  Me.  137  —  26  Atl.  Rep.  1090;  Am.-h  v.  Carter, 
ill    (n,l.  672  —  39  X.  E.  Rep.  546;   Young  v.  Walker.  To  Miss. 
So.   Rep.  546;    Parmelee  v.   McGinty,  52    Miss.   475;    Bandy   v.    Noonan, 
\,m  on  v.  Jacob,  93  Mo.  331       6  S.  W.  Rep.  246;  Field  v. 
Bland,  si   X.  Y.  240;  Roderman  v.  Clark.  46  X.  Y.  354.) 

PURCHASES  [N  CHANCERY  SALES  HAS  RIGHT  TO 
SUBROGATION. 

Doctrine  Applies  to  Chancery  Sales  in  General. 

§  47S.  The  doctrine  of  subrogation  as  applied  to  void  judi- 
cial sales  is  promulgated  by  a  vast  preponderance  of  judicial 


430  VOID  JUDICIAL  AXD  EXECUTION   SALES. 

authority  in  this  country.  However,  founded  as  it  is  upon  a 
desire  to  prevent  fraud  and  subserve  justice,  it  is  never  in- 
voked when  its  application  would  result  in  injustice,  nor  when 
the  establishment  of  an  equitable  lien  would  be  contrary  to 
the  intent  of  the  parties,  nor  in  favor  of  a  mere  volunteer, 
nor  to  assist  the  negligent  in  obtaining  advantages  over  the 
diligent. 

(Kelly  v.  Kelly.  54  Mich.  30 — 19  X.  W.  Rep.  5S0;  Pease  v.  Egan, 
131  X.  Y.  262  —  30  X.  E.  Eep.  102;  Dwight  v.  Lumber  Co.,  S2  Mich. 
624  —  47  X.  W.  Rep.  102;  Shattuck  v.  Cox.  12S  Ind.  203  —  27  X.  E. 
Rep.  609 :  Skinner  v.  Tirrell,  159  Mass.  474  —  34  X.  E.  Rep.  692 ;  Emmert 
v.  Thompson,  49  Minn.  386  —  52  N.  W.  Rep.  31;  Koehler  v.  Hughes, 
148  X".  Y.  507  —  42  X".  E.  Rep.  1051;  Kleimann  v.  Gieselman,  114  Mo. 
437  —  21  S.  W.  Rep.  796;  Wormer  v.  Agricultural  Co.,  62  Iowa,  699  — 
14  N.  W.  Rep.  331;  Building  Association  v.  Scott,  86  Iowa,  431  —  53  X. 
W.  Rep.  283;  Arnold  v.  Green,  116  X.  Y.  566  —  23  X.  E.  Rep.  1;  Insur- 
ance Co.  v.  Middleport,  124  U.  S.  534  —  8  Sup.  Ct.  Rep.  625.) 

In  a  sale  rh  chancery  the  purchaser  of  land  under  a  void 
decree  is  entitled,  upon  the  disaffirmance  of  the  sale,  to  suc- 
ceed to  the  rights  of  the  creditor  under  the  principles  of  sub- 
rogation and  may  charge  the  land  with  the  amount  paid  by 
him  upon  liens  and  incumbrances  upon  the  same  valid  as 
against  the  oviier. 

(Hull  v.  Hull.  32  W.  Va.  155  —  13  S.  E.  Rep.  49:  Chambers  v.  Jones, 
72  111.  275:  Hudgin  v.  Hudgin,  6  Gratt,  320  —  52  Am.  Dec.  124;  Hay- 
mond  v.  Camden,  22  W.  Va,  180.) 

Thus,  where  land  was  sold  under  a  void  proceeding  to  fore- 
close a  vendor's  lien  for  a  balance  of  the  purchase  money, 
the  money  was  duly  paid,  and  without  returning  the  same, 
ejectment  proceedings  were  brought  against  the  purchaser. 
The  court  said:  "  Though  there  is  some  conflict  in  the  ad- 
judged cases  on  the  subject,  we  entertain  no  doubt  but  that 
one  whose  bid  at  a  void  judicial  or  execution  sale  discharges  an 
incumbrance  on  the  land,  can  have  restitution  to  the  extent  of 
the  lien  discharged  before  the  defendant  in  the  void  proceed- 
ing, or  his  heirs,  can  recover  the  lands  so  purchased  by  him,  if 
hi-  purchase  is  made  in  good  faith,  under  the  belief  that  he  is 
acquiring  the  title  ". 

(Meher  v.  Cole,  50  Ark.  361  —  7  S.  W.  Rep.  451.) 

Subrogation  in  Void  Mortgage  Foreclosure  Sales. 

§  479.  Property  sold  under  a  void  foreclosure  of  a  mort- 
gage as  the  property  of  the  mortgagor,  purchased  by  a  third 


PURCHASES   IX   CHANCERY    SALES.  Dl 

party  at  the  sale  under  the  void  decree  in  foreclosure,  and  the 
payment  applied  upon  the  mortgage  debt,  and  subsequently 

the  sale  is  vacated  as  a  nullity,  the  purchaser  accedes  to  the 
rights  the  original  mortgagee  had,  and  may  himself  have  the 
mortgage  foreclosed  for  his  own  benefit.  The  foreclosure  hav- 
ing taken  place  at  the  instance  of  the  mortgagee,  whether 
voidable  or  void,  will  be  sufficient  to  pass  his  rights  in  the 
security  to  the  purchaser  as  an  equitable  assignment  upon 
plain  and  just  principles. 

(Dutcher  v.  Hobbey,  86  Ga.  198  —  12  S.  E.  Rep.  356;  Jellison  v.  Hal- 

loran,  44  Minn.  199  —  46  N".  W.  Rep.  332;  Stewart,  v.  Railway  Co.,  53 
Ohio  St.  151—41  N.  E.  Rep.  247;  Spaulding  v.  Harvey,  129  End.  106  — 
28  N.  E.  Rep.  323;  Nims  v.  Sherman,  4:;  Mich.  45  —  4  N.  W.  Rep.  434; 
Bodkin  v.  Merit,  102  lnd.  293  —  1  N.  E.  Rep.  625;  Gregory  v.  Bartlett, 
55  Ark.  30  —  17  S.  W.  Rep.  344;  Gilbert  v.  Cooley,  Walker  Oh.  494; 
Muir  v.  Berkshire,  52  lnd.  149:  Lyle  v.  Palmer.  4:3  Mich,  nil  —  :1,  N.  W. 
Rep.  921;  Brown  v.  Brown,  7S  Iowa.  430  —  35  N.  W.  Rep.  507:  Bailey 
v.  Bailey,  41  S.  O.  337  —  19  S.  E.  Rep.  669;  Jackson  v.  Bowne,  7  Cow. 
13;  Lillibridge  v.  Tregent,  30  Mich.  105;  Lanier  v.  Mcintosh.  117  Mo. 
50S  — 23  S.  W.  Rep.  7S7;  Townsend  v.  Thompson,  139  N.  Y.  15:3  —  14 
N.  K.  Rep.  S91;  Brewer  v.  Nash,  16  R.  I.  458  —  17  Atl.  Rep.  857:  King 
V.  Brown.  SO  Tex.  27(3  —  16  S.  W.  Rep.  39;  Wilson  v.  White,  S4  Cal.  239 
—  24  Pac.  Rep.  114;  Stark  v.  Brown,  12  Wis.  5S2  —  78  Am.  Dee.  762; 
Rogers  v.  Brown,  39  Minn.  39  — 3S  X.  W.  Rep.  765;  Bruschke  v.  Wright, 
166  111.  1S3;  Bonner  v.  Lessley,  61  Miss.  392;  Wilson  V.  White,  St  Cal. 
239  —  24   Pac.   Rep.    114;    Kelly  v.   Duff,   61   N.   H.   435.) 

While  acceding  to  the  rights  of  the  mortgagee  lie  can  avail 
himself  of  such  rights  to  the  property  only  as  were  accorded  to 
the  original  mortgagee,  and  must  foreclose  anew  upon  the 
mortgage. 

(Nims  v.  Sherman,  43  Mich.  45  —  4  N.  W.  Rep.  434.) 

But  a  purchaser  under  a  void  foreclosure  of  a  mortgage  on 
land,  after  the  execution  of  the  sheriff's  deed,  may  hold  pos- 
session of  the  same,  and  can  successfully  resist  the  mort- 
gagor's suit  in  equity  to  cancel  the  t\wi]  as  a  cloud  upon  his 
title,  unless  the  complainant  has  offered  to  pay  the  purchaser 
what  is  equitably  due  him  as  such. 

(Loney  v.  Courtney.  24    Neb.  5S0  —  39  N.  W.  Rep.  616.) 

In  Foreclosure  of  Tax  Liens. 

§  ISO.  Jnst  as  in  execution  and  judicial  sales,  so  a  pur- 
chaser at  a  void  sale  in  equity  to  foreclose  a  tax  lien,  is  sub- 


4d3  YOID  JUDICIAL  AXD  EXECUTIOX   SALES. 

rogated  to  the  lien  of  the  state  for  the  taxes  he  has  paid  upon 
the  sale. 

(Gregory  v.  Bartlett,  55  Ark.  30  — IT  S.  W.  Eep.  344:  Reed  v.  Kalfs- 
beek,  147  Ind.  14S  —  45  X.  E.  Rep.  476;  Watkins  v.  Willing-.  102  aid. 
330—1  N.  E.  Rep.  638.) 

PURCHASERS  AT  PROBATE  SALES  HAVE  RIGHT 
TO  SUBROGATIOX. 

The  Doctrine  of  Subrogation  Generally  Applicable. 

§  481.  The  doctrine  of  subrogation  in  judicial  sales  has 
been  invoked  more  frequently  in  sales  by  administrators,  ex- 
ecutors and  guardians,  than  in  any  other  sales  under  the  forms 
of  law,  and  is  recognized  as  a  settled  principle  of  our  juris- 
prudence, resting  upon  equity  and  justice.  Probate  sales  are 
generally  made  for  the  purpose  of  raising  funds  to  pay  off 
claims  which  are  themselves  a  charge  upon  the  property  sold, 
and  the  land  is  therefore  charged  therewith  even  anterior  to 
the  institution  of  the  proceedings  of  sale. 

The  right  of  a  purchaser  at  a  void  probate  sale  to  be  sub- 
rogated to  the  specific  lien  or  incumbrance  discharged,  or 
claims  which  though  unsecured  are  yet  charges  upon  the  land, 
is  in  accordance  with  the  principles  of  natural  justice  and  pur- 
suant to  an  enlightened  jurisprudence,  and  is  sustained  by  an 
overwhelming  weight  of  judicial  authority.  Xo  recovery  of 
the  premises  can  be  had  without  previous  reimbursement  in 
a  sum  tantamount  to  that  paid,  and  of  which  the  defendant 
or  heir  has  received  the  benefit  by  reason  of  the  liquidation 
of  liens  or  charges.  Such  purchaser  will  in  equity  be  regarded 
as  the  holder  of  the  equitable  title  to  land,  and  as  such  en- 
titled to  the  possession  of  the  same  until  his  claims  are  satis- 
fied by  those  who  claim  to  own  the  legal  estate  therein. 

(Halsey  v.  Jones,  86  Tex.  488  —  25  S.  W.  Rep.  696:  Xortheraft  v. 
Oliver.  74  Tex.  162  —  11  S.  W.  Rep.  1121;  Hull  v.  Hull,  35  W.  Va.  155  — 
13  S.  E.  Rep.  49;  Wilson  v.  Holt,  83  Ala.  528  —  3  So.  Rep.  321;  Chaplin 
V.  Sullivan.  L38  Ind.  50  —  27  X.  E.  Rep.  425;  Hudgin  v.  Hudgin,  6 
Gratt.  320  —  52  Am.  Dec.  124;  Ellis  v.  Ellis.  84  Ala.  348  —  4  So.  Rep. 
868;  Frost  v.  At  wood,  73  Mich.  67  —  41  X.  W.  Rep.  96;  Hatcher  V, 
Briggs,  6  Ore.  31;  Sands  v.  Eynham,  27  Gratt.  291  —  21  Am.  Rep.  348; 
Snyder  v.  Coleman,  72  Mo.  568:  Kendrick  v.  Wheeler,  85  Tex.  247  —  20 
S.  W.  Rep.  44:  Bond  v.  Montgomery.  56  Ark.  563  —  20  S.  W.  Rep.  525; 
Perry  v.  Adams,  98  N.  C.  167  —  3  S.  E.  Rep.  729;  Blodgett  v.  Hitt,  29 


PURCHASEKS    AT    PROBATE    SALES.  433 

Wis.  169;  Parmelee  v.  McGinty,  52  Miss.  475;  Harrison  v.  Watson,  56 
Ark.  574  —  20  S.  W.  Rep.  529;  Harrison  v.  Hgner,  74  Tex.  86  —  11  S. 
W.  Rep.  1054;  Crippen  v.  Chappel,  35  Kan.  495  —  57  Am.  Rep.  137; 
Brandon  v.  Brown,  106  111.  519;  Smith  v.  Knoebel,  82  111.  400;  Gainea 
v.  Kennedy,  52  Miss.  103;  Duncan  v.  Gainey,  108  Ind.  579  —  9  N.  E.  Rep. 
470;  Levy  v.  Martin,  48  Wis.  198  —  4  X.  W.  Rep.  35;  Williamson  v. 
Williamson,  3  S.  &  M.  715  —  41  Am.  Dec.  636;  Haynea  v.  Meeks,  10 
Cal.    110  —  70  Am.   Dec.   703.) 

Purchasing  with  the  belief  that  lie  is  getting  a  good  title 
to  the  property,  and  his  money  having  been  received  and 
actually  expended  for  the  owner's  benefit  in  the  liquidation  of 
liens  or  charges  thereon,  these  constitute  the  equity  invoking 
the  doctrine  of  subrogation,  which  is  not,  under  circumstances 
of  this  kind,  antagonistic  with  the  maxim  caveat  emptor. 

(Bond  v.  Montgomery,  56  Ark.  563  —  20  S.  W.  Rep.  525.) 

Upon  both  principle  and  authority,  a  purchaser  at  a  void  or 
voidable  judicial  sale,  to  be  protected  under  the  equitable 
doctrine  of  subrogation,  must  be  one  who  has  bought  in  good 
faith  —  an  innocent  purchaser  —  and  this  he  can  not  be  if 
he  bought  writh  notice  of  any  irregularity  or  illegality  in  the 
proceedings,  or  of  any  charge  or  incumbrance  upon  the  prop- 
erty. 

(Huse  v.  Den,  85  Cal.  390  —  24  Pac.  Rep.  790;  Meher  v.  Cole,  50  Ark. 
361  —  7  S.  W.  Rep.  451.) 

Right  Exists  in  Case  the  Sale  is  a  Nullity. 

§  482.  Where  the  order  or  decree  of  sale,  or  judgment  is 
coram  non  judice  and  void,  and  hence  confers  no  authority 
whatever  to  sell,  but  notwithstanding  this  fatal  infirmity,  the 
sale  nevertheless  is  made  and  the  premises  bid  off  and  the 
money  paid  toward  the  charges  or  liens  upon  the  premises,  and 
restitution  thereof  is  not  tendered,  the  heir  or  defendant  is 
estopped  from  asserting  the  legal  title  to  the  prejudice  of  the 
purchaser,  and  his  privies.  No  person,  whether  sill  juris,  or 
under  disability,  having  received  and  retains  the  fruits  of  a 
judicial  proceeding,  will  be  permitted  to  impeach  it,  to  the 
prejudice  of  those  who  have  relied  and  acted  upon  it  as  valid 
and  in  good  faith.  And  it  is  immaterial  whether  the  grounds 
of  attack  are  irregularity  or  a  total  want  of  jurisdiction,  the 
assailant  will,  under  such  circumstances,  be  precluded  from 
impeaching  the  proceeding,  because  upon  considerations  of 
28 


434  VOID  JUDICIAL  AND  EXECUTION  SALES. 

justice  and  wise  public  policy,  he  can  not  act  upon  and  adopt 
such  part  of  a  transaction  as  is  favorable  to  him  and  reject  the 
rest,  to  the  prejudice  of  others  having  yielded  the  right  and 
advantage  to  him. 

(Iron  Co.  v.  Fullenweider,  87  Ala.  584  —  €  So.  Rep.  197;  Robertson  v. 
Bradford,  73  Ala.  116;  Wilson  v.  Holt.  S3  Ala.  528  —  3  So.  Rep.  321; 
Hull  v.  Hull,  35  W.  Va.  155  —  13  S.  E.  Rep.  49;  Hudgin  v.  Hudgin,  6 
Gratt.  320  —  52  Am.  Dec.  124;  Duncan  v.  Gainey,  108  Ind.  579  —  9  N. 
E.  Pep.  470;  Craemer  v.  Holbrook,  99  Ala.  52  —  11  So.  Rep.  830;  Jones 
V.  Iron  Co.,   95  Ala.  551  —  10   So.  Rep.   635.) 

Based  upon  the  hypothesis  that  is  inconsistent  with  estab- 
lished principles,  that  infants,  or  persons  not  sai  juris,  being 
themselves  incapable  of  performing  the  act  or  consenting  to 
its  performance  by  others,  should  nevertheless  be  bound  by 
it  when  unlawfully  done  by  another,  it  is  held  by  some  courts 
that  where  the  sale  by  a  guardian  is  void,  the  fact  that  the 
proceeds  derived  therefrom  were  applied  to  the  infant's 
benefit  will  not  estop  him  from  denying  the  validity  of  the 
sale  upon  reaching  his  majority. 

(Rowe  v.  Griffiths,  78  N.  W.  Rep.  20;  Bachelor  v.  Korb,  78  N.  W. 
Rep.  485;  Wilkinson  v.  Filby,  24  Wis.  441.) 

It  is  essential  that  the  money  be  paid  toward  the  satisfaction 
of  such  claims  as  are  a  charge,  at  least  by  implication  of  law, 
upon  the  land,  or  upon  liens  or  incumbrances  thereon,  or  else 
the  purchaser  can  not  claim  the  right  to  subrogation,  as  there 
is  then  nothing  to  base  the  right  upon. 

(Bishop  v.  0"Conner,  51  111.  437;  Jayne  v.  Boisgerard,  39  Miss.  796; 
Hill  v.  Billingsly,  53  Miss.  Ill;  Frost  v.  Atwood,  73  Mich.  67  —  41  N. 
W.  Rep.  96;  Pool  v.  Ellis,  64  Miss.  555  —  1  So.  Rep.  725.) 

EIGHT  OF  PURCHASERS  AT  EXECUTION  SALES 
TO  SUBROGATION  AFFIRMED. 

Where  Execution  Defendant  Has  no  Title. 

§  483.  In  execution  sales  the  purchaser  who  obtains  noth- 
ing by  his  purchase  is  not  without  a  remedy  pursuant  to  the 
decided  preponderance  of  judicial  authority,  both  in  cases 
where  the  execution  defendant  has  no  title  to  the  property 
ostensibly  sold,  or  having  an  interest  therein  it  is  one  not 


RIGHT   OF    PURCHASERS     \T    EXECUTION    BALES..  t35 

subject  to  compulsory  sale,  and  when  the  title  fails  by  reason 
of  infirmities  in  the  proceedings  of  sale. 

Pursuant  to  the  decisions  in  the  majority  of  states,  when 
the  plaintiff  himself  is  the  purchaser,  and  gets  nothing  be- 
cause the  defendant  had  no  title  or  interest  subject  to  dis- 
position in  this  manner,  his  remedy  is  a  vacation  of  the  ap- 
parent satisfaction  of  the  judgment. 

(Hitchcock  v.  Caruthers,  LOO  Cal.  100  —  34  I'm.-.  Rep.  627;  Whipperman 
v.  Dunn.  124  hid.  349  —  24  N.  E.  Rep.  166;  Bresler  v.  Martin.  133  Ml. 
;  \.  K.  Rep.  518;  Watson  v.  Reissi-  24  111.  281  —  76  Am.  Dec. 
T4f>:  Wallace  v.  Berdell,  41  Hun.  444.) 

But  this  rule  is  not  universal  as  it  is  sometimes  held  that 
where  the  plaintiff  becomes  the  purchaser  it  operates  as  an 
irrevocable  satisfaction  of  the  judgment,  from  the  conse- 
quences <>f  which  equity  will  afford  him  no  relief  in  the 
.nee  of  fraud,  imposition  or  surprise. 

(Thomas  v.  Glazener,  90  Ala.  537  —  8  So.  Rep.  153;  Vattier  v.  Lyttle, 
i',  Ohio,  4TT:  Goodbar  v.  Daniel,  ss  Ala.  543  —  7  So.  Rep.  25  1 :  Holcomhe 
v.  Loudermilk,  3  Jones  L.  491:  McCartney  v.  Kin.-.  25  Ala.  681.) 

Where  the  judgment  debtor  has  no  title  and  a  third  party 
buys  under  an  execution  sale,  reimbursement  in  the  amount 
contributed  toward  the  satisfaction  of  the  judgment  may  be 
enforced  by  proceedings  in  equity  against  the  execution  de- 
fendant notwithstanding  no  fraud  can  be  imputed  to  him. 

(Wilchinsky  v.  Cavender,  72  Mo.  192:  Muir  v.  Craig,  3  Blackf.  293  — 

25  Am.  Dee.  111  ;  Julian  v.  Meal.  26  End.  220       B9  Am.  Dec.  460;   Howard 

v.   North.    .">  Tex.   290  —  51    Am.    Dec.    769;    Hawkins   v.    .Miller.   26    End. 

I.Chee  v.    Ellis,  4  Litt.  245  —  14  Am.    Die    124:    Warner  v.    Eelm, 

i    Gilrn.  220;   McLaughlin  v.  Daniel.   8  Dana.    182;    McLean  v.    Martin. 

Mo.  393.) 

Where  Judgment  is  Valid  but  Subsequent  Proceedings  Void. 

§  484.  If  the  judgment  itself  is  void  and  hence  create-  no 
;ind  the  debl  upon  which  it  was  rendered  was  not  a 
charge  upon  the  land,  there  is  manifestly  nothing  to  which 
the  purchaser  can  possibly  he  subrogated,  and  accordingly  he 
has  no  rights  which  he  can  assert,  upon  principle,  against  the 
judgment  creditor. 

(Northeraft  v.  Oliver.  71  Tex.  L62-  n  s.  w.  Rep.  1121;  Manufactur- 
ing Co.  v.  Beyer,  Tt  Wis.  210  -42  X.  W.  Rep.  2 


436  VOID  JUDICIAL  AND  EXECUTION   SALES. 

But  where  the  execution  is  issued  on  a  valid  judgment  and 
a  purchaser  in  good  faith  acquires  no  title  because  of  the  pro- 
ceedings being  irregular  or  insufficient  to  pass  the  same,  he 
acquires  by  subrogation  the  rights  of  the  judgment  plaintiff 
to  the  extent  of  the  lien  of  judgment  discharged  with  his 
money. 

(Paxton  v.  Sterne.  127  Ind.  289  —  26  X.  E.  Rep.  557;  Pool  v.  Ellis. 
64  Miss.  555  —  1  So.  Rep.  725 ;  Duncan  v.  Gainey,  108  Ind.  579  —  9  N. 
E.  Rep.  470;  Caldwell  v.  Palmer,  6  Lea.  572;  Short  v.  Sears,  93  Ind. 
505;  Burns  v.  Ledbetter,  54  Tex.  374;  Bentley  v.  Long,  1  Strobh.  Eq. 
43_47  Am.  Dec.  523;  Jones  v.  Smith,  55  Tex.  383:  Stults  v.  Brown, 
112  Ind.  370—14  N.  E.  Rep.  230;  Bennett  v.  Caldwell,  S  Baxt,  483; 
Dufour  v.  Camfrane,  11  Mart.  610  —  13  Am.  Dec.  360;  Howard  v. 
North,    5    Tex.    290  —  51    Am.    Dec.    769.) 

But  there  are  casos  which  deny  the  right  to  subrogation  to 
the  lien  of  judgment  discharged  by  the  payment  of  the  money 
upon  the  theory  that  the  purchaser  of  land  upon  a  sale  under 
simple  execution  is  a  mere  volunteer  and  the  doctrine  of  sub- 
rogation has  no  application  in  such  case. 

(Chambers  v.  Jones,  72  III.  279;  Bishop  v.  C/Conner,  69  111.  431: 
Kinney  v.  Knoebel,  51  111.  112;  Nowler  v.  Coit,  1  Ohio,  236  — 13  Am.  Dec. 
640;    Richmond   v.    Marston,    15    Ind.    136.) 

So  where  the  right  to  subrogation  to  the  lien  which  the 
purchase  money  has  removed  is  recognized,  the  purchaser's 
possession  of  the  land  will  remain  unmolested  until  the  claim 
or  lien  is  liquidated.  This  is  the  rule  generally  in  cases  where 
the  execution  sale  is  void  though  made  upon  a  valid  judg- 
ment, fraud  not  imputable. 

(Dufour  v.  Camfrane,  11  Mart.  607  —  13  Am.  Dec.  360;  Blackburn  v. 
Clarke,  85  Tenn.  506  —  3  S.  W.  Rep.  505 ;  McGee  v.  Wallis,  57  Miss.  638  — 
34  Am.  Rep.  4S4;  Andrews  v.  Richardson,  21  Tex.  287;  Elani  v.  Donald, 
58  Tex.   316.) 

In  some  states  the  purchaser  may  recover  from  the  judg- 
ment creditor  if  the  proceedings  are  utterly  void,  and  this 
upon  the  theory  that  there  is  no  consideration  for  the  pur- 
chase, 

(Elling  v.  Harrington.  17  Mont.  322  —  42  Pac.  Rep.  851;  Bank  v. 
Eltinge,  40  N.  Y.  391  —  100  Am.  Dec.  516;  Schweringer  v.  Hickok,  53 
N.  Y.  280;  Henderson  v.  Overton,  2  Yerg.  394  —  24  Am.  Dec.  492.) 

or  where  the  failure  of  title  is  the  consequence  of  defective 
proceedings  due  to  the  delinquency  and  misconduct  of  the 


DOCTRINE   OF   SUBROGATION    DENIED.  437 

officer  conducting  the  sale,  the  right  to  prosecute  an  action  in 
damages  against  such  officer  is  conceded  in  other  courts. 

(Sexton  v.  Nevers,  20  Pick.  451  —  32  Am.  Doc.  2:25:  Harrison  v. 
Shanks.   L3  Bn  h,  620;   McGhee  v.  Ellis,   I   Litt.  244  —  14  Am.  Dec.  124.) 

DOCTRINE    OF    SUBROGATION    DENIED. 

Result  of  Denial  of  the  Right  to  Subrogation. 

§  485.  It  is  an  axiom  of  common  honesty  and  a  self-evident 
truth,  as  well  as  a  principle  of  natural  justice  that  one  can  not 
rightfully  sell  his  property  and  retain  the  purchase  money 
and  the  property  also.  This  principle  is  applicable  to  judicial 
as  well  as  to  private  sales.  Execution  and  judicial  sales  are 
usually  made  in  the  enforcement  of  Hens  or  charges  upon  the 
property  sold,  and  the  money  paid  is  utilized  in  the  liquidation 
of  such  liens  or  charges.  If  the  owner  of  the  property  can 
be  permitted  to  avoid  the  sale,  with  no  relief  to  the  purchaser 
from  any  one  he  will  not  only  still  have  his  property  as  before 
the  sale,  but  have  its  value  augmented  in  the  amount  of  the 
purchase  money  paid  in  the  reduction  of  liens  and  charges. 

Pursuant  to  the  great  weight  of  authority,  when  the  sale 
is  avoided,  the  purchaser  who  has  become  such  in  good  faith 
and  who  has  paid  his  money  accedes  to  the  rights  of  the  holder 
of  the  lien  or  charge  for  the  payment  of  which  the  proceed- 
ings of  sale  were  instituted.  But  the  rule  caveat  emptor 
has  been  so  rigidly  enforced  in  void  probate  sales  as  to  pre- 
clude the  purchaser  from  being  subrogated  to  the  rights  of 
the  creditors  whose  claims  his  money  has  paid,  notwithstand- 
ing the  fact  the  claims  were  payable  out  of  the  land,  and  by 
implication  of  law  were  a  charge  thereon.  Under  the  rule 
announced  in  Illinois  one  who  purchases  lands  of  a  decedent 
at  a  sale  by  the  administrator  for  the  payment  of  debts  of  the 
ancestor,  cannot  be  subrogated  to  the  rights  of  the  creditor 
whose  debts  are  so  paid,  unless  such  debts  are  expressly  made 
a  charge  upon  the  land  by  the  decedent,  but  not  where  the 
same  are  a  charge  upon  the  land  merely  by  implication  of 
'law.  as  such  case  does  not  come  within  any  of  the  cases  to 
which  the  doctrine  is  applicable. 

(Borders  v.  Hodges,  154  III.  498  —  39  N.  E.  Rep.  597;  Bishop  v. 
O'Conner,   69   111.   431;   Chambers  v.   Jones,   72   111.   275.) 


438  VOID  JUDICIAL  AND   EXECUTION   SALES. 

Formerly  it  was  the  rule  in  Indiana  and  Ohio  that  one  who 
purchased  under  execution  upon  a  valid  judgment,  vet  the 
sale  being  inoperative  by  reason  of  insufficient  proceedings 
to  pass  the  title,  could  not  claim  subrogation  to  the  rights  of 
the  judgment  creditor  because  the  purchaser  occupied  the 
position  of  a  volunteer,  nothing  appearing  that  the  money 
paid  was  for  protection  of  his  interests. 

(Richmond  v.  Marston,  15  Ind.  134:  Nowler  v.  Coit,  1  Ohio,  519  —  13 
Am.  Dec.  640;  Salmond  v.  Price,  13  Ohio.  368  —  42  Am.  Dec.  204;  Leib 
v.  Ludlow,  4  Ohio,  469.) 

But  in  the  former  state  the  courts  have  affirmed  the  right 
of  subrogation,  and  in  the  latter  the  right  is  established  by 
provision  of  statute,  as  to  sales  under  legal  process. 

(Thompson  v.  Insurance  Co.,  139  Ind.  325  —  39  X.  E.  Rep.  306:  Bunting 
v.  Gilmore,  124  Ind.  113  —  24  N.  E.  Rep.  5S3 ;  Muir  v.  Berkshire,  52  Ind. 
149;    Weherle   v.   Weherle,    39   Ohio   St.    365.) 

The  doctrine  of  subrogation  is  affirmed  upon  the  principle 
that  it  is  the  policy  of  the  law  to  offer  inducements  to  pur- 
chasers to  augment  competition  at  compulsory  sales,  and  that 
a  purchaser  at  an  invalid  sale  under  legal  process  is  not  a  vol- 
unteer, as  the  term  is  employed  in  connection  with  the  doc- 
trine of  subrogation. 

(Bunting  v.  Gilmore.  124  Ind.  113  —  24  N.  E.  Rep.  583;  Bodkin  v. 
Merit,   108  Ind.   293  —  1  X.   E.   Rep.   625.) 

But  even  where  subrogation  is  denied,  where  the  heir  prose- 
cutes his  bill  to  redeem  or  set  aside  the  sale  of  lands  sold, 
no  circumstance  of  fraud  being  imputed  to  the  purchaser, 
equity  requires  the  complainant  as  a  condition  precedent  to 
the  prosecution  of  his  suit  to  refund  the  money  paid,  and  this 
upon  the  principle  that  asking  equity  he  must  do  equity. 

(Borders  v.  Hedges.  154  111.  498  —  39  X.  E.  Rep.  597:  Lagger  v.  Loan 
Association,  146  111.  283  —  33  X.  E.  Rep.  946:  Kinney  v.  .Knoebel,  51 
111.  112;   Chambers  v.  Jones.  72  111.  275:   Smith  v.  Knoebel.  82  111.  392.) 

EFFECT  OF  PURCHASER'S  FRAUD  OX  RIGHT  TO 
SUBROGATION. 

Obtains  no  Title  and  Forfeits  Money  Paid. 

§  486.  Subrogation  being  a  peculiar  creation  of  equity, 
the  familiar  principle  and  maxim  that  lie  who  seeks  equity 
must  come  with  clean  hands,  has  special  applicability  to  this 


EFFECT    OF    PURCHASER^    FRAUD.  L39 

doctrine.  While  it  is  a  general  rule  that  one  who  buys  at  a 
void  judicial  sale,  made  under  a  valid  judgment,  or  under 
proceedings  to  enforce  a  valid  lien  or  claim  against  the  prop- 
erty bought,  is  entitle.]  to  a  return  of  his  money  paid  toward 
the  satisfaction  of  such  judgment  or  claim  upon  a  vacation 
of  the  sale,  yet  this  rule  has  no  application  to  a  purchaser 
guilty  with  the  imputations  of  fraud  or  misrepresentations. 
In  accordance  with  a  fundamental  rule  of  equity  juris- 
prudence, when  actual  fraud  is  imputed  to  a  purchaser  in 
procuring  a  title  to  land  at  either  a  private  or  public  sale,  he 
not  only  obtains  no  title,  but  by  reason  of  the  fraud,  will 
forfeit  the  money  he  has  paid. 

(Goebel  v.  O'Conner.  43  Neb.  49  —  61  N.  W.  Rep.  131;  Phelps  v. 
Benson,  161  Pa.  St.  418  —  29  Atl.  Rep.  86;  Gilbert  v.  Hoffman.  2  Wat;-. 
66—26  Am.   Dee.   103;    Elam  v.  Donald,   58  Tex.  316.) 

The  supreme  court  of  Pennsylvania  very  vigorously  stated 
the  rule  of  law  in  this  regard  when  it  said:  "  To  say  that  a 
void  title  can  stand  as  a  security  for  purchase  money,  ad- 
vances, or  anything  else,  is  a  contradiction  in  terms.  It  falls 
like  an  empty  sack,  because  it  has  nothing  to  support  it  and 
can  not  support  itself.  The  position  that  one  win.  is  detected 
in  a  cheat  by  which  he  has  acquired  no  title,  shall,  neverthe- 
less, be  placed  on  a  footing  of  one  who  has  a  good  title, 
unless  the  money  expended  in  the  perpetration  of  the  fraud 
be  paid  to  him  by  the  injured  party,  shocks  our  sense  of  right 
as  much  as  it  violates  the  analogies  of  the  law  ". 

(McCrasky  v.  Graff,   23   Pa.   St.  321  —  62  Am.   Dec.   336.) 

Nor  is  the  purchaser  protected  as  innocent  from  the  simple 
fact  that  he  did  not  actually  participate  in  the  commission  of 
the  fraud,  if  he  had  actual  lcnowledge  or  notice  thereof  on  the 
part  of  others,  when  he  bought,  for  then  he  did  so  with  his 
eyes  open,  which  precludes  the  application  of  the  doctrine  of 
subrogation  for  his  protection. 

(Mining  Co.  v.  Ross,  20  Nev.  127  —  18  Pac.  Rep.  358;  Brush  v.  Ware, 
15  Pet,  111;  Hardy  v.  Harbin,  4  Sawyer,  536;  Harden  v.  Bayden,  -16 
Cal.  341.) 

It  is  a  universal  and  fundamental  principle  that  any  one 
who  desires  to  invoke  the  equitable  doctrine  of  subrogation 
in  his  behalf  must  come  into  court  with  clean  hands,  which 
manifestly  precludes  the  right  to  relief  from  the  consequences 


440  VOID  JUDICIAL  AND  EXECUTION   SALES. 

of  the  wrongful  acts  which  he  has  either  himself  committed 
or  participated  in  their  commission.  Having  committed  the 
wrong  himself \  its  consequences  place  him  in  a  position  where 
the  court  is  powerless  to  assist  him  in  the  reparation  of  his  loss. 
(In  re  Hayes'  Estate,  159  Pa.  St.  381  —  28  Atl.  Rep.  158;  Rowley  v. 
Towsley,  53  Mich.  329  —  19  N.  W.  Rep.  20;  Devine  v.  Harkness,  117 
HI.  145  —  7  N.  E.  Rep.  52;  Johnson  v.  Moore,  33  Kan.  90  —  5  Pac.  Rep. 
406;  Bank  v.  United  States,  148  U.  S.  573  —  13  Sup.  Ct.  Rep.  702;  Martin 
V.  Hodge,  47  Ark.  378  —  1  S.  W.  Rep.  694.) 

Purchase  of  Homestead  in  Contravention  of  Statute. 

§  487.  A  purchaser  at  a  sale  by  an  administrator  under  the 
order  of  the  court,  of  a  homestead  theretofore  set  aside  as  such, 
is  not  guilty  of  a  crime  nor  of  fraud,  when  the  sale  is  made 
in  contravention  of  a  statute  making  it  a  criminal  offense  to 
sell  such  homestead.  While  such  sale  is  void  in  so  far  as  the 
transfer  of  the  legal  title  to  the  premises  is  concerned,  still 
the  purchaser  is  entitled  to  be  subrogated  to  the  right  of  the 
creditors #  whose  claims  were  paid  with  the  money  realized 
from  the  sale 

(Bond  v.  Montgomery,  56  Ark.  563  —  20  S.  W.  Rep.  525;  Harris  v. 
Watson.    56    Ark.    574  —  20    S.    W.    Rep.    529.) 

Fraudulent  Purchaser  May  Assert  Equities  in  Mississippi. 

§  488.  Under  the  general  rule  which  obtains  almost  every- 
where fraud  precludes  the  idea  of  extending  any  relief  to  one 
to  whom  it  may  be  imputed,  yet  in  one  state  a  diametrically 
opposite  rule  prevails,  where  a  fraudulent  purchaser  at  a 
judicial  sale  who  has  paid  his  money  may  assert  the  same 
equities  as  a  hona  fide  purchaser.  We  think  this  ruling  is  not 
only  in  contravention  of  the  plainest  principles  of  equity  and 
untenable  upon  every  possible  hypothesis  upon  which  it  may 
be  sought  to  be  justified,  but  stands  alone  among  the  judicial 
enunciations  of  ihe  courts  of  the  country  in  this  regard. 

(Weaver  v.  Norwood,  56  Miss.  665;  Grant  v.  Lloyd,  12  S.  &  M.  191.) 

RIGHT  OT  PURCHASER  TO  EQUITABLE  ASSIST- 
ANCE IN  SUPPLYING  DEFECTS,  OMISSIONS 
AND  MISTAKES. 

Equity  Will  not  Aid  a  Defective  Execution  of  Statutory  Power. 
§  480.  Courts  are  inclined  very  strongly  to  protect  an  in- 
nocent purchaser  for  value  who  paid  his  money  in  good  faith. 


BIGHT    OF    PURCHASES    TO    EQUITABLE    ASSISTANCE.       Ul 

His  equities,  as  against  him  who  received  its  benefits,  are  such 
as  are  founded  upon  the  strongest  considerations  of  common 
justice,  and  manifestly  superior  to  those  of  him  seeking  to 
avoid  the  consequences  of  the  sale,  without  having  previously 
reimbursed  such  purchaser  as  a  condition  precedent  to  the 
avoidance  of  the  sale.  If  the  defect,  omission  or  mistake 
which  invalidates  the  sale  has  not  produced  a  detrimental  re- 
sult to  the  owner  of  the  property,  it  is  manifest  that  the 
equities  in  favor  of  the  purchaser  are  of  the  strongest  char- 
acter, and  it  would  be  the  deepest  injustice  to  turn  him  out  by 
denving  him  any  redress.  He,  as  well  as  all  others  concerned 
in  the  sale  may  have  labored  under  the  delusion  that  every- 
thing about  it  was  regular  and  perfect,  and  owing  to  spirited 
bidding  the  price  realized  may  have  been  the  full  value,  and 
the  money  dispensed  pursuant  to  law.  and  yet  some  omission 
or  imperfection  environs  the  sale,  fatal  in  its  effects  at  law, 
and  no  title  is  acquired  by  the  purchaser 

The  proposition  then  confronting  him  is,  will  or  will  not 
equitv  interpose  to  supply  or  rectify  such  defects  or  omis- 
sions? Will  equity  assist  him  by  denying  those  in  interest  the 
privilege  of  availing  themselves  of  the  opportunity  of  suc- 
cessfullv  urging  such  irregularities  or  omissions  to  defeat  the 
purchaser  when  they  have  really  suffered  no  injury?  It  is  a 
firmly  settled  principle  of  equity  jurisprudence  that  while 
equity  will  interpose  under  certain  conditions  to  aid  the  de- 
fective execution  of  a  power  created  by  the  act  of  the  parties, 
it  will  refrain  from  lending  its  aid  where  a  power  created  by 
statute  is  defectively  executed.  This  rule  confronts  the  pur- 
chaser at  the  very  threshold  in  his  application  to  a  court  of 
chancerv  for  relief,  and  is  enforced  with  inexorable  rigidity 
'..here  an  omission  or  mistake  runs  through  the  whole  pro- 
ceedings anterior  to  the  deed  of  conveyance  in  an  execution  or 
judicial  sale, 

(Tatum  v.  Crooni.  GO  Ark.  4R7  —  30  S.  W.  Rep.  8S5 :  Stewart  v.  Stokes. 
33  \la.  494  —  73  Am.  Dec.  429:  Tiernan  v.  Poor.  1  G.  &  J.  216—19  Am. 
Dee.  225;  Bartlett  v.  Judd.  21  N.  Y.  200—78  Am.  Dec.  131  ;  Gardner  v. 
Moore.  75  Ala.  394;  Mason  v.  White.  11  Barb.  1S7;  Abernethy  v.  Dennis. 
49  Mo.  468:  Bright  v.  Boyd.  1  Story,  486;  Allen  v.  Moss,  27  Mo.  354; 
Gridley  v.  Phillips,  5  Kan.  349;  Ware  v.  Johnson.  55  Mo.  500:  Blythe 
v.  Dargin.  68  Ala.  370;  Gebb  v.  Howell,  40  Md.  387.) 

In  this  regard,  Pomeroy  in  his  able  and  exhaustive  treatise 
on  Equity  Jurisprudence,  at  section   834  observes:       'The 


442  VOID  JUDICIAL  AND  EXECUTION   SALES. 

defective  execution  of  statutory  powers,  in  the  failure  to  com- 
ply with  the  prescribed  requisites,  can  not  be  aided  by 
equity  ". 

Correction  of  Errors  or  Mistakes  in  General. 

§  490.  It  is  sometimes  held  that  mistakes  are  corrected  in 
equity  even  where  they  occur  in  the  records  of  proceedings  of 
courts  and  exist  in  the  records  themselves,  though  the  correc- 
tion is  then  accomplished  by  restraining  the  parties  who  might 
take  advantage  of  them  from  doing  so,  or  by  compelling  them 
to  execute  proper  papers  for  the  purpose  of  such  correction. 

(Zingsem  v.  Kidd.  29  N.  J.  Eq.  516;  Bartlett  v.  Judd,  :n  X.  V.  100  — 
78  Am.  Dec.  131;  Stewart  v.  Pettigrew,  28  Ark.  372:  Boss  v.  Obry.  7 
C.  E.  Green,  52.) 

If  the  grounds  exist  which  authorize  the  interposition  of 
a  court  of  equity  in  a  case  of  private  sale,  for  similar  reasons 
the  court  will  assist  the  purchaser  when  a  mistake  occurred 
and  the  unconscionable  advantage  was  obtained  by  one  at  a 
judicial  sale. 

(Miller  v.  Craig,  83  Ky.  623  —  4  Am.  St.  Rep.  179:  Dawson  v.  (Jood- 
YN-in,    15   B.   Mon.    439.) 

However,  where  the  rule  obtains  that  equity  will  refuse  to 
aid  the  defective  or  imperfect  execution  of  a  statutory  power, 
the  liberal  rule  promulgated  by  the  courts  of  Xew  York,  New 
Jersey  and  Kentucky  can  not  be  enforced  where  the  requisite- 
prescribed  by  statute  have  not  been  fully  observed  by  the 
officer  in  conducting  a  judicial  or  execution  sale.  In  such  ■ 
the  purchaser  gets  the  whole  title  by  virtue  of  the  officer's 
deed  or  he  gets  nothing  at  all.  He  will  not  obtain  an  im- 
perfect equitable  title  which  is  susceptible  of  being  perfected 
in  chancery.  If  chancery  could  step  in  and  interfere  by  dis- 
pensing with  one  of  the  statutory  requirements  in  the  sale  con- 
summated under  the  forms  of  law,  it  can  do  so  with  as  much 
propriety  with  any  other  provision  in  this  regard,  and  upon 
similar  principle  could  ultimately  dispense  with  the  entire 
provisions  of  statute.  "But  the  truth  is,  the  purchaser  a^ 
these  statutory  sale*  gets  no  imperfect  equitable  title  which 
may  be  perfected  in  chancery;  he  gets  the  whole  title  which 
the  infant  had,  or  he  gets  no  title  whatever  ". 

(Young  v.  Dowl in?.  15  111.  4-:.':  Bright  v.  Boyd,  1  Story,  478.) 


RIGHT   OF    PURCHASER   TO    EQUITABLE     ASSISTANCE.       443 

But  it  has  been  hold  that  where  two  administrators  sold 
land  under  an  order  of  the  court  and  the  deed  was  executed 
by  but  one  of  them,  that  equity  will  enjoin  the  heirs  from 
prosecuting  their  suit  to  recover  the  premises. 

(Wortman  v.  Skinner,  12  N.  J.  Eq.  358.) 

And  where  the  proceedings  were  regular  anterior  to  the 
sheriff's  deed,  which  was  defective  for  want  of  a  seal,  that  the 
irregularity  is  one  which  equity  will  correct  upon  application 
therefor  by  bill  in  chancery, 

(Galbreath  v.  Dilday,  152  111.  207-38  N.  E.  Rep.  572.) 

as  well  as  a  misrecital  in  the  officer's  deed  of  the  date  of  an 
execution. 

(Hawley  v.  Simons,  14  N.  E.  Rep.  7.) 

Errors  or  Mistakes  in  Proceedings  and  Deed. 

§  491  An  inadvertent  omission  is  tantamount  to  a  volun- 
tary omission  or  neglect  of  duty,  and  can  not  be  legitimately 
called  an  accident,  and  hence  equity  wholly  disregards  such 
infirmities.  For  like  reasons  it  will  not  correct  mere  mis- 
takes, and  will  refuse  to  lend  assistance  in  relieving  a  pur- 
chaser from  the  consequences  of  such  mistake.  It  is  upon 
this  principle  that  equity  can  not  relieve  a  purchaser  by  giv- 
ing him  the  tract  of  land  really  intended  to  be  conveyed  in  a 
iudicial  sale,  but  by  mistake  some  other  tract  was  embraced 
in  the  order  of  sale,  or  was  levied  on  under  execution,  or  only 
a  part  of  the  tract  really  intended  to  be  disposed  of  was  em- 
braced when  the  whole  was  intended.  If  the  error  is  not  de- 
tected until  subsequent  to  sale,  it  is  too  late  and  equity  will 

not  correct  the  error. 

(Bowen  v    Wickersham,  124  Ind.  404-24  N.  E.  Rep.  983-.   Clenden- 
ninK  V.  Ohl,  118  Ind.  46-20  N.  E.  Rep.  639;  Dickey  v.  Beatty.  14  Ohio 
St.   389;   Ward  V.  Brewer,   19  111.   291-68  Am.    Deo.   596;    Kauri,  v. 
Kaylor,  95  Ind.  503;  Miller  v.  Kolb,  47  Ind.  220;  Rogers  v.  Abbott    3 
Ind.  138;  Mahan  v.  Reeve.  6  Blackf.  215;  Reefer  v.  Frace,  86  lml.  81.) 

In  an  early  Indiana  case  in  partition  under  an  order  of  the 
probate  court,  the  land  was  described  as  being  in  section 
twenty-eight  whereas  it  was  in  section  twenty-three,  and  a 
suit  in  equity  was  instituted  to  correct  the  error,  which  ran 
through  the  entire  proceeding.  The  supreme  court  Justice 
Blatchford  in  writing  for  the  court,  said:     "  A\  e  think  this 


444  VOID  JUDICIAL  AND  EXECUTION   SALES. 

decree  is  erroneous.     JSFo  authority  is  cited,  and  we  know  of 
none,  that  shows  a  court  of  chancery  to  have  jurisdiction  in 
a  case  like  that  described  in  the  bill ". 
(Mahan  v.  Reeve,  6  Blackf.  215.) 

And  the  supreme  court  of  Arkansas  in  a  late  case  in  this 
regard  said :  "  As  the  mistake  was  not  only  in  the  execution 
of  the  deed,  but  in  the  proceedings  anterior  to  that,  and  upon 
which  the  sale  was  based,  we  think  the  court  properly  refused 
to  reform  the  deed.  *  *  *  It  was  also  necessary  that  the 
order  of  sale  should  sufficiently  describe  the  land  ordered  to 
bo  sold,  for,  without  this,  the  sheriff  had  no  power  to  sell.  As 
this  was  not  done,  and  as  the  defective  description  was  copied 
by  the  sheriff  in  his  advertisement  and  deed,  the  sale  and  deed 
were  void,  and  beyond  the  power  of  a  court  of  equity  to  cure". 

(Tatum  v.  Croom,  60  Ark.  487  —  30  S.  W.  Rep.  885.) 

But  where  a  mistake  was  made  in  the  description  of  land  in 
a  deed  under  execution,  as  well  as  a  mistake  in  the  deed  to  the 
judgment  debtor,  the  purchaser  may  obtain  the  proper  relief 
in  a  suit  in  equity  to  correct  the  defect. 

(Bradshaw  v.  Atkins.   110  111.   323.) 

Uncertainty  of  Description  in  Mortgage  and  Proceedings. 

§  492.  If  the  sheriff's  deed  under  execution  in  foreclosure 
proceedings  of  a  mortgage  upon  land  is  void  for  uncertainty 
in  the  description  of  the  property,  it  has  been  held  that  it 
could  not  be  reformed  in  equity,  because  to  do  so  would  be 
to  change  the  effect  of  the  proceedings  and  decree  whereon  it 
is  based,  which  manifestly  can  not  be  done  in  this  manner. 

(Bowen  v.  Wickersham,  124  Ind.  404  —  24  N.  E.  Rep.  983:  Dale  v. 
Insurance  Co.,  89  Ind.  473:  Lewis  v.  Owen,  64  Ind.  446.) 

It  is  however  considered  that  it  is  within  the  power  of 
equity  to  reform  a  mortgage  and  the  foreclosure  proceedings 
thereon  by  correcting  a  mistake,  and  this  even  after  the  same 
has  been  merged  in  a  decree  of  foreclosure  and  deed  executed 
thereunder,  when  it  has  reformed  them  all  according  to  the 
true  facts  and  intentions,  going  back  to  the  original  error  and 
correcting  all  subsequent  mistakes  growing  out  of  the  same, 
unless  to  do  so  would  interfere  with  the  rights  of  purchasers 
or  incumbrancers  in  good  faith,  for  value,  and  without  notice. 


BIGHT    OF    PURCHASER    TO    EQUITABLE    ASSISTANCE.       445 

(Quivey  v.  Baker,  37  Cal.  465;  Davenport  v.  Covil,  6  Ohio  St.  465; 
Strange  v.  Beach.  11  Ohio  St.  283  —  78  Am.  Dec.  308;  Conyera  v.  Mercies, 
75  Ind.  443;  Bank  v.  Abbott,  20  Wis.  599;  Blodgett  v.  llubart,  18  Vt. 
414.) 

"Where  the  mortgage  and  proceedings  in  foreclosure  prop- 
erly described  the  land  but  the  officer's  deed  omitted  to  de- 
scribe a  part  of  it,  the  deed  was  corrected  in  equity  so  as  to 
include  all  the  land. 

(Zingsem  v.  Kidd,  29  N.  J.  Eq.  516;  Struble  v.  Neighbert,  41  Ind. 
344;  Foster  v.  Clark,  79  111.  225.) 

Equity  Will  Compel  Officer  to  Make  Proper  Conveyance. 

§  493.  If  the  deed  of  conveyance  is  defective  by  reason  of 
errors  or  omissions,  the  correction  may  be  accomplished,  ac- 
cording to  the  rule  announced  in  some  adjudications,  by  com- 
pelling the  proper  officer  to  make  a  conveyance  embracing  a 
full  and  perfect  description  of  the  land,  proceeding  upon  the 
theory  that  the  power  of  the  court  to  compel  the  execution 
of  a  proper  deed  in  pursuance  of  a  judicial  or  execution  sale 
is  a  continuing  one  and  is  not  exhausted  until  such  a  deed  is 
made. 

(Lamb  v.  Sherman.  19  Neb.  6S1  —  2S  N.  W.  Rep.  319;  Jelks  v.  Bar- 
rett, 52  Miss.  315;  Thornton  v.  Miskimmon,  48  Mo.  219;  Stewart  v. 
Stokes,  33  Ala.  494  —  73  Am.  Dec.  429.) 

But  in  case  of  a  probate  sale  this  must  be  done  before  the 
fiduciary  is  discharged  and  the  estate  closed,  for  then  the  court 
has  no  jurisdiction  over  the  administrator,  executor  or 
guardian. 

(Melton  v.  Fitch  125  Mo.  281  —  28  S.  W.  Rep.  612;  Garner  v.  Tucker, 
61  Mo.  427.) 


Chapter  VIII. 


Curative  Statutes,  and  Special  Acts  Authorizing  Invol- 
untary Sales. 


ANALYSIS. 

Section  494.  Effect  and  Constitutionality  of  Curative  Statutes  —  Lim- 
itations upon  Passage  of  Curative  Statutes. 

495.  Irregular    Judicial    Proceedings    and    Sales    May    be 

Confirmed. 

496.  Limitations  on  Scope  of  Curative  Statutes  in  General. 

497.  Void  Judicial  Sales  and  Proceedings  Incurable. 

498  Can  not  Contravene  the  Constitutional  Guaranty  of 

Due  Process  of  Law. 

499.  ■  Can  not  Invade  the  Province  of  the  Judiciary. 

500.  Effect  on  Pending  Causes. 

501.  Defects  not  Jurisdictional  not  Capable  of  Confirma- 
tion. 

502.  Effect  of  Curative  Statutes  Limited  to  Original  Par- 
ties. 

503.  Operation  of  Curative  Statutes  upon  Tax  Titles. 

504.  Involuntary  Sales  under  Special  Acts  —  General  Observa- 

tion on  Such  Acts. 

505.  Theory  upon  Which  Sales  under  Special  Act  Author- 
ized. 

506.  Grounds  upon  Which  Sale  Under  Special  Statute  Au- 
thorized. 

EFFECT    AND    CONSTITUTIONALITY    OF    CURA- 
TIVE STATUTES. 

Limitations  upon  Passage  of  Curative  Statutes. 

§  494.  In  a  majority  of  the  states  statutes  have  been  en- 
acted having  for  their  object  the  validation  of  judicial  pro- 
ceedings and  sales  theretofore  had,  and  which  were  invalid  or 
inoperative  at  law  as  well  as  in  equity.  Where  there  is  no 
constitutional  inhibition  against  the  enactment  of  retrospec- 
tive statutes,  it  is  well  settled  in  the  jurisprudence  of  this 
country  that  such  statutes  may  be  passed,  but  it  is  equally 
as  well  settled  that  curative  or  retrospective  legislation  will 


EFFECT  OF  CT/BATIVE   STATUTES. 


n; 


not  bo  uphold  in  case  it  materially  interferes  with,  or  wholly 
overthrows  vested  rights,  or  imposes  new  or  additional  bur- 
dens, or  invades  the  province  of  the  judiciary. 

(Daniels  v.  Watertown,  61  Mich.  514-28  X.  W.  Rep.  673;  Sidway 
v  Lawson,  58  Ark.  117-2:?  S.  W.  Rep.  64S:  Bank  v.  Gibson,  60  Ark. 
269  —  30  S.  W.  Rep.  39;  Menges  v.  Dentler,  33  Pa.  St.  495  75  Am. 
Dec.  616;  Newman  v.  Samuels.  17  Iowa.  528;  Brinton  v.  Seevers,  12 
[owa,  389;  Thompson  V.  Morgan.  6  Minn.  292;  Wright  v.  Hawkins,  2S 
Tex.  452.) 

We  apprehend  that  the  supreme  court  of  Indiana  has  gone 
farther  than  any  other  court  in  promulgating  the  doctrine 
that  the  legislature  has  authority  to  make  a  void  thing  valid 
by  statute,  provided  only  that  by  so  doing  no  constitutional 
provision  has  been  contravened,  the  extreme  ground  main- 
tained in  this  state  being  that  in  the  absence  of  constitutional 
inhibition  to  the  contrary  the  legislature  may  always  validate 
void  acts. 

(Walpole  v.  Elliott,  is  Ind.  258  —  81  Am.  Doc.  358;  Johnson  v.  Board. 
107  Ind  15  — S  N.  E.  Rep.  1;  Gardner  v.  Haney,  86  Ind.  17:  Bank  v. 
Miller,  91  Ind.  441:  Sithin  v.  Board,  66  Ind.  109:  Grimes  v.  Doe.  8 
Blackf.  371:  Andrews  v.  Russell.  7  Blackf.  474:  Davis  v.  State,  7  Ind. 
316.) 

Irregular  Judicial  Proceedings  and  Sales  May  be  Confirmed. 

§  495.  If  the  infirmity  in  the  sale  or  judicial  proceeding 
is  not  of  a  jurisdictional  nature,  but  consists  merely  of  soi 
irregularity,  it  is  generally  conceded  that  a  legislative  enact- 
ment having  for  its  purpose  the  healing  or  confirmation  of 
such  irregularity  is  constitutional  and  effective.  Therefore, 
various  irregularities  or  omissions  in  execution  and  judicial 
sales  have  been  considered  cured  by  such  statutes,  among  them 
such  as  defective  levies  and  returns,  sales  in  contravention 
of  appraisement  laws,  sales  on  executions  issued  upon  judg- 
ments beyond  a  specified  time,  and  the  like,  none  of  such 
defects  being  jurisdictional. 

(Norton  v.  Pettibone,  7  Conn.  319-18  Am.  Dec.   116;    Brickhouse  v. 
Sutton,  99  N.  C.   103-     5  S    E.  Rep.  380;   Hasbrouck   v.   Milwaukee,  13 
Wis    37  —  80  Am.   Dec.   718;    Menges   v.    Dentler,   33   Pa.    St.   495 
\m    Dec.  616;  Selsby  v.  Redlon.   19  Wis.  17:   Boyce  v.  Sinclair..  3   Bush, 
261;  Lane  v.  Nelson,  79  Pa.  St.  407:  Wildes  v.  Vanvoorhis,  L5  Gray,  139.) 

So  in  Indiana  the  court  held  that  in  enacting  a  statute  citr- 
ine defects  or  irregularities  in   the  proceedings  of  judicial 


448  VOID  JUDICIAL  AND  EXECUTION   SALES. 

tribunals,  the  legislature  does  not  invade  the  judiciary  or 
usurp  judicial  functions,  and  that  a  statute  validating  judg- 
ments affected  with  no  other  infirmity  than  the  omission  of 
the  signature  of  the  judge  to  the  record  of  each  day's  pro- 
ceedings, is  constitutional  and  valid. 
(Cookerly  v.  Duncan,  87  Ind.  332.) 

In  accordance  with  the  principle  that  the  irregularities 
consisting  in  doing  some  act,  or  in  the  manner  or  mode  of 
doing  some  act,  which  the  legislature  might  have  made  im- 
material by  the  enactment  of  a  prior  statute,  it  is  competent 
to  make  the  same  immaterial  by  a  subsequent  law,  it  has  been 
held  that  deeds  not  executed  in  conformity  to  the  mode  pre- 
scribed by  statute,  may  be  validate  by  the  passage  of  a  cura- 
tive act  subsequent  to  the  execution  of  the  same,  in  case  no 
third  party  has  acquired  an  interest  in  the  property  affected. 

(Sidway  v.  Lawson.  58  Ark.  117  —  23  S.  W.  Rep.  648;  Apel  v.  Kelsey. 
47  Ark.  413  —  2  S.  W.  Rep.  102;  Chestnut  v.  Shane,  16  Ohio,  599  —  47 
Am.  Dee.  3S7;  Johnson  v.  Richardson,  44  Ark.  365;  Dentzler  v.  Waldin, 
30  Cal.  138;  Green  v.  Abraham,  43  Ark.  420;  Journeay  V.  Gibson,  56 
Pa.  St.  57;  Dulaney  v.  Tilgham,  6  G.  &  J.  461;  Shank  v.  Brown,  61  Pa. 
St.  327;  Watson  v.  Mercer,  8  Pet.  88;  Newman  v.  Samuels,  17  Iowa, 
528;   Cupp  v.  Welch,  50  Ark.  294  —  7  S.  W.   Rep.   139.) 

Limitations  on  Scope  of  Curative  Statutes  in  General. 

§  496.  While  judicial  proceedings  which  are  wholly  void 
by  reason  of  inherent  jurisdictional  defects  can  not  be  vali- 
dated by  any  legislative  provision,  yet  where  the  infirmity 
consists  of  mere  irregularities,  notwithstanding  these  are  of 
sufficient  magnitude  to  render  an  execution  or  judicial  sale 
inoperative,  may  still  be  validated  by  subsequent  curative 
statutes.  Or  in  other  words,  any  matter  which  the  legislature 
could  have  dispensed  with  in  advance  in  a  judicial  or  execu- 
tion sale,  it  may  dispense  with  after  their  consummation  by 
the  passage  of  a  curative  statute. 

(Ellis  v.  Railway  Co.,  77  Wis.  114  —  45  N.  W.  Rep.  811;  Ferguson  v. 
Williams,  58  Iowa,  717—13  N.  W.  Rep.  49;  Green  v.  Abraham.  43  Ark. 
420;  Johnson  v.  Board,  107  Ind.  15  —  8  N.  E.  Rep.  1;  Gordon  v.  San 
Diego,  101  Cal.  522  —  36  Pac.  Rep.  18;  McCullough  v.  Estes.  20  Ore. 
349—25  Pac.  Rep.  724;  Ward  v.  Lowndes,  96  N.  C.  367.) 

In  this  regard  the  supreme  court  of  Oregon  in  a  late  case 
said:    "  That  body  could  not  cure  a  defect  arising  from  the 


EFFECT  OF   CURATIVE   STATUTES.  449 

failure  to  servo  process  in  an  action  or  suit  in  accordance  with 
some  prescribed  mode,  as  it  has  no  power  to  authorize  an 
adjudication  against  the  party  to  an  action  or  suit  without 
such  service  being  made  A  failure  to  acquire  original  juris- 
diction over  the  person  or  property  of  a  defendant  in  any  ease 
would  doubtless  come  under  the  same  rule.  But  where  a 
court  obtains  jurisdiction  over  a  special  subject-matter  given 
to  it  by  law,  as  probate  courts  do  over  the  estates  of  decease  I 
persons  after  an  executor  or  administrator  of  the  estate  has 
heen  duly  appointed  and  qualified,  and  the  court  proceeded  to 
exercise  its  jurisdiction  in  regard  to  a  matter  connected  there- 
with without  having  complied  with  the  mode  which  the  legis- 
lature had  prescribed,  hut  which  it  could  have  dispensed  with, 
then  the  proceeding  of  the  court,  although  irregular  and  de- 
fective, could  l^e  confirmed  by  subsequent  legislation  when 
justice  would  thereby  he  promoted  ". 

(Mitchell  v.   Campbell.   19  Ore.  198  —  24  Pae.  Rep.  435.) 

And  the  supreme  court  of  Washington  in  a  recent  case  in- 
volving the  construction  and  effect  of  curative  statutes  said: 
"  It  is  true  the  law  then  provided,  in  relation  to  sales  of  real 
estate,  that  a  petition  should  first  be  presented  to  obtain  an 
order  therefor,  and  a  citation  issued  thereon  notifying'  parties 
interested  to  appear  at  the  time  set  for  the  hearing.  But 
could  not  the  legislature  have  dispensed  with  this  petition? 
It  seems  to  us,  unquestionably,  the  legislature  had  such  power, 
as  the  court  acquired  jurisdiction  of  the  estate  by  the  appoint- 
ment and  qualification  of  the  administrator;  and  administra- 
tion of  an  estate  being  a  proceeding  in  rot),  the  legislature 
could  have  provided  for  a  sale  of  the  land  without  any  petition 
or  notice  whatever.  If  this  he  true,  the  legislature  could 
thereafter  pass  the  statute  in  question  validating  sales  where 
no  petition  had  been  filed,  when  the  particular  things  therein 
specified  appear.  It  is  therefore  immaterial,  whether  this 
petition  in  question  and  the  citation  to  appear  at  the  hearing 
thereon  were  void  in  consequence  of  the  failure  to  give  the 
prescribed  notice,  or  for  any  reason.  The  respondent's  title 
can  safely  rest  on  the  subsequent  proceedings,  and  the  cura- 
tive act  aforesaid,  under  the  conceded  facts  in  the  case  ". 

(Ackerscm  v.  Orchard,  7  Wash.   377  —  35  Pac.   Rep.  605.) 
29 


450  VOID  JUDICIAL   AND   EXECUTION   SALES. 

In  an  early  federal  case  a  judicial  sale  of  land  in  one  state 
under  the  order  of  a  court  in  another  state  was  confirmed  by 
the  legislature  of  the  former  state, 

(Wilkinson  v.  Leland,   2   Pet.   627.) 

hut  we  take  it  that  the  doctrine  announced  in  this  case  is  no 
longer  tenable  under  the  federal  constitution  as  it  now  stands. 
When  the  fourteenth  amendment  was  adopted  it  manifestly 
put  an  end  to  the  doctrine  found  in  "Wilkinson  v.  Leland,  and 
legislative  transfer  of  property  is  impliedly  if  not  expressly 
prohibited. 

Void  Judicial  Sales  and  Proceedings  Incurable. 

§  497.  Manifestly  legislative  power  to  pass  curative  stat- 
utes is  restricted  by  a  limitation  prescribed  by  necessity  and 
natural  justice  to  the  enactment  of  such  laws  as  will  not  in- 
clude within  their  scope  elementary  matters,  which  it  had 
no  authority  previous  thereto  to  abrogate  or  dispense  with, 
for  the  legislative  department  of  government  has  no  inherent 
power  to  declare  by  legal  enactment  that  to  be  a  judgment 
and  obviously  invest  with  legal  efficacy,  which  theretofore 
was  no  judgment  and  was  without  force  or  effect  because  of 
inherent  jurisdictional  infirmities.  It  has  no  power  to  exer- 
cise judicial  authority,  nor  can  it  take  away  property  without 
due  process  of  law. 

(Maguiar  v.  Henry,  84  Ky.  1  —  4  Am.  St.  Rep.  182:  Conway  v.  Cable, 
37  ju_  go_s7  Am.  Dec.  240;  Johnson  v.  Board,  107  Ind.  15  —  8  N.  E. 
Eep.  1;  Pryor  v.  Downey,  50  Cal.  388  —  19  Am.  Rep.  056;  McDaniel  v. 
Correll,  19  111.  226  —  68  Am.  Dec.  587 ;  Bryson  v.  McCreary.  102  Ind.  1 
—  1  X.  E.  Rep.  55;  Israel  v.  Arthur.  7  Colo.  5—1  Pac.  Rep.  438;  Nel- 
son v.  Rountree,  23  Wis.  367;  Griffin  v.  Cunningham,  20  Gratt.  109; 
Lane  v.  Nelson.  79  Pa.  St.  407;  State  v.  Squires,  26  Iowa.  340;  Richards 
v.  Rote,  68  Pa.  St.  248;  Strasser  v.  Fort  Wayne.  100  111.  443;  Peckham 
v.  Newark,  43  N.  J.  L.  576.) 

It  is  a  settled  rule  that  if  there  is  a  want  of  jurisdiction  to 
pronounce  the  judgment  or  decree,  or  make  the  order  or 
license  of  sale,  no  subsequent  legislative  validation  can  give 
validity  to  the  same  in  the  least  degree. 

(Finlayson  v.  Peterson,  5  N.  Dak.  5S7  —  67  X.  W.  Rep.  953;  Perry 
v.  Adams,  98  N.  C.  167  —  3  S.  E.  Rep.  729;   Roche  v.  Waters,   72  Md. 

264 19  Atl.  Rep.  535;  Harrison  v.  Harrison.   106  X.  C.  282  —  11  S.  E. 

Rep.   356:   Pryor  V.    Downey.   50  Cal.   3SS  — 19   Am.    Rep.    656;    Hart  v. 
Henderson.  17  Mich.   218;    Hopkins  v.   Mason,  61   Barb.  469.) 


EFFECT  OF  CURATIVE  STATUTES.  451 

In  a«  comparatively  late  case  in  Alabama  an  act  of  the 
legislature  of  that  state  for  the  protection  of  purchasers  of 
land  sold  by  executors  and  administrators  was  under  considera- 
tion, and  the  supreme  court,  in  passing  upon  the  constitution- 
ality of  the  act  in  so  far  as  it  soughl  to  validate  void  sales, 
expressed  its  views  in  this  forcible  language:  "  It  is  well 
settled,  on  the  soundest  conceivable  principles,  that  no  power 
resides  in  any  legislative  body  to  clothe  a  decree  or  judgment, 
which  is  absolutely  void,  with  the  habiliments  of  legal 
validity  ". 

'Robertson  v.   Bradford,   70  Ala.   385.) 

Cannot  Contravene  the  Constitutional  Guaranty  of  Due  Process 
of  Law. 

§  498.  Legislative  enactments  providing  for  the  arbitrary 
and  involuntary  transfer  of  the  property  of  one  man  to  an- 
other without  due  process  of  law,  whether  with  or  without 
compensation  therefor,  are  a  flagrant  violation  of  funda- 
mental law,  and  possess  not  the  least  pretext  of  validity. 

(Oilman  V.  Tucker,  128  N.  Y.  190  —  28  N.  E.  Rep.  1040j  Maxwell  v. 
Grace,  85  Ala.  577  —  5  So.  Rep.  319;  Cromwell  v.  MacLean,  123  N.  Y. 
474  —  25  N.  E.  Rep.  832 ;  Board  v.  Bank,  86  Ky.  150  —  5  S.  W.  Rep. 
739 ;  Weltzer  v.  Kelly,  S3  Ala.  440  —  3  So.  Rep.  747 ;  Embury  v.  Connor, 
3  N.  Y.  511  —  53  Am.  Dec.  325;  Palariet's  Appeal,  07  Pa.  St.  479;  York 
V.  Texas,  137  U.  S.  15  —  11  Sup.  Ct.   Rep.  9.) 

Hence,  a  statute  purporting  to  forfeit  the  title  and  estate  of 
all  unknown  owners  of  military  lots  in  case  they  fail  to  pro- 
duce, within  a  specified  time,  the  evidence  of  their  title  thereto, 
is  unconstitutional  and  void,  because  it  is  in  effect  the  taking 
of  the  property  of  another  without  due  process  of  law. 

(Scarf  v.  Trask.  73  Md.  378  —  21  Atl.  Rep.  56.) 

Husband  and  wife  made  their  wills,  giving  their  property 
to  each  other,  but  by  mistake  each  signed  the  other's  will, 
and  after  the  death  of  the  former  a  special  act  of  the  legis- 
lature was  passed  authorizing  the  court  to  hear  testimony, 
and  reform  the  will  in  case  it  should  find  that  a  mistake  had 
been  made;  it  was  held  thai  the  right  of  the  heirs  of  the 
husband  had  vested  on  his  death  and  the  act  unconstitutional 
and  void,  as  the  husband  in  fact  had  executed  no  will  to  re- 
form. 

(Alter's  Appeal,  07  Ta.  St.  341.) 


452  VOID  JUDICIAL  AND  EXECUTION   SALES 

Cannot  Invade  the  Province  of  the  Judiciary. 

§  499.  It  is  a  fundamental  principle  of  jurisprudence  that' 
the  legislature  can  not,  by  the  passage  of  a  retrospective  stat- 
ute, exercise  a  power  of  a  clear  judicial  nature,  for  in  nearly 
every  state  constitutional  provision  exists  prohibiting  the  ex- 
ercise of  such  power  by  the  legislature,  because,  if  permitted 
to  do  so,  the  power  of  the  judiciary  would  be  invaded  and 
encroached  upon,  and  its  most  essential  prerogative  impaired. 
A  final  adjudication  by  a  court  of  competent  jurisdiction  m 
the  determination  of  the  rights  of  the  litigants  would  be 
made  an  impossibility  were  such  legislation  permitted,  and 
the  will  of  the  legislature  would  supplant  the  ancient  and 
established  rules  and  principles  governing  judicial  tribunals 
and  judicial  proceedings,  resulting  in  the  inevitable  destruc- 
tion of  the  theory  of  our  form  of  government,  and  violative 
of  an  elementary  and  fundamental  principle  constituting  one 
of  the  distinctive  elements  thereof. 

Therefore,  the  operation  and  effect  of  curative  statutes  do 
not  extend  to  cases  where  the  proceedings  involved  had  been, 
anterior  to  the  enactment  of  the  statute,  determined  to  be 
void  by  the  rendition  of  a  judgment  of  a  competent  court  to 
that  effect. 

(Menges  v.  Dentler,  33  Pa.  St.  495  —  75  Am.  Dec.  616;  Mayor  v. 
Horn.  26  Md.  194:  Lane  v.  Nelson,  79  Pa.  St.  407;  Gilman  v.  Tucker, 
128  X.  Y.   190  — 2S  N    E.  Rep.   1040.) 

Statutes  interfering  with  the  force  and  effect  of  judgments 
rendered  previous  to  their  enactment,  as  a  general  rule,  will 
not  be  upheld  by  the  courts  because  they  invade  the  province 
of  the  judiciary,  and  as  an  encroachment  of  one  department 
of  government  upon  another  co-ordinate  department.  It  is 
therefore  beyond  the  power  of  the  legislature  to  direct  the 
performance  of  a  judicial  function  in  a  particular  manner, 
for  to  do  so  would  be  an  invasion  of  the  judiciary  by  the  legis- 
lature. Such  a  statute  would  in  effect  be  a  legislative  man- 
date to  the  court  for  the  performance  of  its  judicial  functions 
in  a  particular  manner,  and  at  variance  with  every  principle 
of  our  governmental  organization. 

(Commonwealth  v.  Warwick.  172  Pa.  St.  140  —  33  Atl.  Rep.  373; 
Penny  v.  Mattoon,  2  Allen.  301—79  Am.  Dec.  784;  De  Chastellux  v. 
Fairfax,  15  Pa.  St.  18  —  53  Am.  Dec.  570;  Davis  v.  Menasha.  21  Wis. 


EFFECT  OF  CUfiATIVE  STATUTES.  t53 

491;  Lewis  v.  Webb,  3  Greenl.  326;  Taylor  v.  Place,  4  R.  I.  324;  Hill 
v.   Sunderland,   3   Vt.   507.) 

Accordingly,  as  the  power  to  grant  a  new  trial  is  judicial', 
the  legislature  can  not  dired  thai  flu's  lie  granted  by  the 
court,  nor  can  the  fruits  of  a  judgment,  once  rendered,  be 
affected  by  legislative  action,  as  the  power  of  reopening  a  final 
sentence  of  a  competent  judicial  tribunal  determining  the 
questions  of  private  interests  rests  exclusively  in  the  courts. 

(Oilman  v.  Tucker.  128  X.  V.  190  —  28  X.  E.  Rep.  1040;  Common- 
wealth v.  Warwick,  172  Pa.  St.  140  —  33  Atl.  Rep.  373;  De  Chastellux 
v.  Fairfax,  15  Pa.  St.  18  —  53  Am.  Dec.  570;  Aldridge  v.  Board,  51  X.  .1. 
L.  166 — 16  Atl.  Rep.  695;  Denny  v.  Mattoon,  2  Allen,  361  —  79  Am. 
Dec.  7S4.) 

The  power  of  the  legislature  is  limited  under  constitutional 
provision  almost  everywhere  to  the  single  field  of  legislative 
power,  and  judicial  functions  are  entirely  withdrawn  from 
its  consideration,  leaving  it  without  authority  to  interfere 
with  the  jurisdiction  of  courts  or  to  take  a  ease  out  of  the 
general  and  settled  course  of  judicial  proceeding. 

(Sidway  v.  Lawson,  58  Ark.  117  —  23  S.  W.  Rep.  G4s;  Maxwell  v. 
Goetchius,  11  Vroom.  3S3  —  29  Am.  Rep.  242;  Denny  v.  Mattoon,  2 
Allen,  361  —  79  Am.  Dec.  7S4;  De  Chastellux  v.  Fail  tax,  15  Pa.  St.  is 
—  53  Am.  Dec.  570;  Colgan  v.  McKeon,  4  Zabr.  566;  State  v.  Newark, 
3  Dutch.  185:  Richards  v.  Rote.  6S  Pa.  St.  24s ;  Powers  v.  Bergen,  6 
N.  Y.  358:  Shank  v.  Drown,  61  Pa.  St.  320;  Taylor  v.  Place,  4  R.  I.  326; 
Jones  v.  Perry,  10  Yerg.  59.) 

Effect  on  Pending  Causes. 

§  500.  In  Kentucky  retroactive  statutes  affecting  a  pend- 
ing cause,  notwithstanding  otherwise  unobjectionable,  are  in- 
effectual as  against  all  private  parties  upon  tin-  ground  that 
the  legislative  department  of  the  commonwealth  has  no  au- 
thority to  invade  the  province  of  the  judiciary.  In  this  re- 
gard the  court  in  a  recent  case  said:  "  It  is  true  if  the  legis- 
lature, during  the  pendency  of  litigation,  were  to  pass  an  act 
having  a  retrospective  effeet  in  favor  of  one  of  the  litigants, 
it  would  be  an  invasion  by  one  independent  department  of 
government  of  another  and,  therefore,  unconstitutional  ". 

(Marion  Co.  v.  Railway  Co.,  91  Ky.  388  —  15  S.  W.  Rep.  1061;  Thweatt 
v.  Bank,  81  Ky.  1.) 


454  YOID  JUDICIAL  AND  EXECUTION   SALES. 

The  rule  in  Kentucky  is  at  variance  with  that  which  ob- 
tains in  other  states,  where  it  is  generally  held  that  a  person 
can  not  acquire  a  vested  right  by  the  institution  of  a  suit,  un- 
less pending  suits  are  excepted  by  the  terms  of  the  statute. 
Such  statutes  govern  on  the  ground  that  the  simple  fact  of 
bringing  the  suit  will  not  vest  in  a  party  thereto  any  right  to 
a  particular  decision,  as  the  case  must  be  decided  according 
to  the  law  as  it  stands  when  judgment  is  rendered,  and  not 
what  it  was  when  the  suit  was  instituted. 

(Sidway  v.  Lawson.  5S  Ark.  117  —  23  S.  W.  Rep.  648;  Beard  v.  Dansby, 
4S  Ark.  183—2  S.  W.  Rep.  701:  Johnson  v.  Richardson.  44  Ark.  365; 
Satterlee  v.  Matthewson.  16  S.  &  R.  169:  People  v.  Supervisors.  20  .Mich. 
95:  Cowgill  v.  Long,  15  III.  202:  Miller  v.  Graham.  17  Ohio  St.  1;  Adams 
v.   Palmer,  51   Me.   4S0.) 

Defects  not  Jurisdictional  not  Capable  of  Confirmation. 

§  501.  While  it  is  generally  conceded  to  be  within  the 
power  of  the  legislature  to  pass  healing  statutes  confirming 
and  validating  irregular  judicial  and  execution  sales,  as  well 
as  the  acts  of  public  functionaries  having  honestly  though 
imperfectly  executed  their  powers  in  cases  of  such  sales  fairly 
consummated,  or  the  attempted  performance  of  acts  in  the 
conscientious  supposition  of  the  proper  discharge  of  imposed 
official  duties,  such  legislative  authority  does  not  extend  to 
the  confirmation  and  validation  of  fraudulent  execution  or 
judicial  sales.  It  would  infringe  upon  the  powers  of  the 
courts  by  precluding  the  investigation  and  nullification  of  such 
sales  when  affected  by  the  vitiating  element  of  fraud. 

(Railway  Co.  v.  Railway  Co.,  50  X.  H.  50.) 

And  it  i-  also  held  that  where  a  sale  under  execution  was 
declared  void  by  statute  when  made  after  the  return  day 
of  the  writ,  a  healing  statute  declaring  such  a  sale  valid  is 
considered  unconstitutional  and  void,  as  the  purchaser  bought 
with  his  eyes  open. 

(Dale  v.  Metealf.  9  Pa.  St.  110.) 

Effect  of  Curative  Statutes  Limited  to  Original  Parties. 

§  502.  Curative  statutes  are  admittedly  retrospective  in 
their  effect,  and  hence  even  where  their  validity  is  conceded 
they  are  limited  to  the  original  parties  to  the  litigation.  Ac- 
cordingly, where  the  proceedings  upon  sales  under  execution 


i:i  ;  E(   D   OF  CURATIVE  STATUTES.  £55 

are  so  defective  as  to  fail  to  pass  the  title  from  the  defendant 
iu  the  writ  to  the  purchaser,  and  subsequent  to  the  defective 
sale  the  identical  property  Is  sold  by  the  defendant  to  an  in- 
nocent person  for  value,  such  purchaser  receives  the  title  to 
the  property,  his  rights  to  the  same  being  regarded  in  law 
as  vested,  and  therefore,  not  susceptible  of  being  divested  or 
impaired  by  any  subsequenl  curative  act.  A  similar  rule  ob- 
tains in  case  of  legislative  provision  having  for  its  object  the 
confirmation  of  deeds  affected  by  an  infirmity  by  reason  of 
informality. 

(Daniels  v.  Watertown,  61  Mich.  514  —  28  X.  W.  Rep.  673;  Bank  v. 
Gibson,  60  Ark.  269  —  30  S.  W.  Rep.  39;  Menges  v.  Dentler,  33  Pa.  St. 
495  _  75  Am.  Dec.  616;  Harrison  v.  Harrison,  106  N.  C.  282—  11  S.  E. 
Rep.  350;  Standi  v.  Gay,  92  N.  C.  462.) 

Operation  of  Curative  Statutes  upon  Tax  Titles. 

§  503.  Tn  tax  proceedings,  if  the  legislature  had  ante- 
cedent power  to  authorize  a  tax,  it  has  authority  to  cure,  by 
statute,  any  irregularity  or  want  of  authority  to  levy  such  tax 
intrusted  in  and  imposed  upon  the  proper  officer  whose  duty 
it  is  to  make  the  levy,  upon  the  hypothesis  that  whatever  the 
legislature  could  have  dispensed  with  in  advance,  it  may  do 
retroactively  by  the  passage  of  an  express  statute  providing 
that  such  irregularities  or  omissions  shall  not  invalidate  or 
nullify  the  proceedings,  nor  prejudice  the  rights  acquired 
thereunder. 

(Richman  v.  Board.  77  Iowa,  513  —  42  X.  W.  Rep.  422;  Sinclaire  v. 
Learned,  51  Mich.  335  —  10  X.  W.  Rep.  072:  Shattuck  v.  Smith.  6  X. 
Dak.  56  —  69  X.  W.  Rep.  5:  Mining  Co.  v.  Auditor.  37  Mich.  391;  People 
V.  Supervisors,  20  Mich.  95;   Hart  v.  Henderson,   17  Mich.   2 is.) 

But  where  the  proceedings  are  void  because  of  an  entire 
want  of  notice  to  the  owner  of  the  property,  a  subsequent 
statute  purporting  to  validate  them  is  unconstitutional  and 
void  as  it  attempts  to  dispense  with  something  retroactively 
which  it  could  not  do  in  advance,  the  right  to  notice  and  being- 
heard  when  his  property  is  sought  to  he  condemned. 

(Board  v.  Fahlor,  132  Ind.  420-  ::i  X.  E.  Rep.  1112:  Johnson  v. 
Board.  107  Ind.  15  —  8  X.  E.  Rep.  1;   Fahlor  v.  Board,   nil    Ind.   167.) 

Nor  can  a  curative  statute  validate  tax  proceedings  where 
the  alleged  assessment  was  absolutely  void. 

(People  v.  Wemple,  117  X.  Y.  77  —  22  X.  E.  Rep.  761.) 


456  VOID  JUDICIAL  AND  EXECUTION   SALES. 

In  deciding  that  a  tax  sale,  void  for  want  of  notice,  can  not 
be  validated  by  a  healing  statute,  Justice  Gray  in  writing 
for  the  supreme  court  of  Massachusetts  said:  "  We  find  it 
impossible  to  reconcile  this  statute  with  the  fundamental  prin- 
ciples, declared  in  the  Constitution  of  the  Commonwealth, 
that  every  subject  has  the  right  to  be  protected  in  the  enjoy- 
ment of  his  property  according  to  standing  laws;  that  his 
property  shall  not  be  appropriated,  even  to  public  uses,  with- 
out paying  a  reasonable  compensation  therefor;  that  he  shall 
not  be  deprived  of  his  property  or  estate,  but  by  the  judgment 
of  his  peers  or  the  law  of  the  land;  and  that  the  legislative  de- 
partment shall  never  exercise  the  judicial  power  ". 

(Forster  v.  Forster,  129  Mass.  559.) 

So  in  a  comparatively  late  case  in  Xew  York  involving  the 
validity  of  a  curative  statute  as  affecting  a  void  tax  sale,  Jus- 
tice Peckham  in  writing  for  a  unanimous  court  very  forcibly 
said:  "What  difference  does  it  make  to  say  that  the  legis- 
lature is  acting  only  in  the  way  of  validating  proceedings  to 
collect  a  tax  which  in  justice  the  owner  of  the  land  ought  to 
pay?  The  answer  is  that  the  proceedings  have  been  so  fatally 
defective  that  no  title  has  passed,  and  the  owner  has  his  title 
to  his  property  the  same  as  if  no  tax  proceedings  had  been 
taken.  Where  is  the  authority  in  such  ease  for  the  legis- 
lature to  itself  transfer  the  title  to  his  property  to  some  one 
else?  Jf  the  proceedings  of  the  taxing  power  have  been  so 
fatally  defective  on  account  of  a  failure  to  comply  with  the 
requirements  of  the  statute  that  no  title  to  the  property  of  the 
taxpayer  has  passed  to  the  purchaser  at  the  sale,  I  do  not 
think  there  is  any  correct  principle  upon  which  can  be  based 
the  claim  that  the  taxpayer  nevertheless  holds  his  property 
from  that  time  on  at  the  mercy  of  the  legislature  and  subject 
to  its  power  at  any  time,  so  far  as  he  is  concerned,  to  validate 
and  give  life  and  effect  to  the  otherwise  void  sale  ". 

(Cromwell  v.  Mac-Lean.  123  N.  Y.  474  —  25  X.  E.  Rep.  932:  Gilman 
V.  Tucker,  128  X.  Y.  190  —  28  X.  E.  Rep.  1040.) 

INYOLUNTAEY  SALES  UJTOEK  SPECIAL  ACTS. 

General  Observations  on  Such  Acts. 

§  504.  Private  act-  authorizing  the  involuntary  alienation 
of  the  property  or  estates  of  infants  and  incompetents  have 


INVOLUNTARY    SALES    UNDEE   SPECIAL    A.CTS.  I"! 

long  been  forbidden  by  constitutional  inhibition  in  aearly 
every  state.  Such  constitutional  prohibition  even  ante-dates 
the  inhibition  against  the  granting  of  special  charters,  incor- 
porated in  the  fundamental  law  of  nearly  if  not  every  one 
of  the  states.  A  majority  of  the  adjudications  upon  the  sub- 
ject of  special  legislation  authorizing  the  involuntary  transfer 
or  disposition  of  the  property  of  persons  under  disability  are 
old  cases  and  constitute  a  matter  of  historical  interest  rather 
than  of  practical  importance.  The  consideration  of  these 
private  acts  is  perhaps  not  directly  involved  in  the  present  sub- 
ject, though  it  is  very  closely  allied  with  judicial  sales,  and  a 
brief  discussion  of  the  same  will  be  justifiable  and  perhaps 
not  unprofitable. 

Private  acts  authorizing  the  involuntary  sale  of  the  prop- 
erty of  infants  and  incompetents,  without  the  previous  ju- 
dicial adjudication  and  declaration  concerning  the  necessitv 
of  such  sale,  or  the  propriety  thereof,  arc  to  be  condemned 
because  in  violation  of  the  ancient  and  fundamental  guaranty 
to  every  free  man  that  he  shall  not  be  deprived  of  his  prop- 
erty except  by  the  law  of  the  land,  as  expressed  in  Magna 
Charta,  or  in  the  language  of  modern  constitutions,  "  without 
due  process  of  law  ".  Such  legislation  is  further  untenable 
as  an  unwarranted  invasion  of  judicial  functions  by  the  legis- 
lative  power. 

Constitutional  prohibition  against  the  enactment  of  special 
laws  authorizing  or  providing  for  the  sale  or  conveyance  of 
real  estate,  exist  in  Michigan  and  Arkansas;  against  the  pas- 
sage of  statutes  providing  for  the  sale  or  conveyance  of  real 
estate  of  persons  under  disability,  in  New  Jersey.  Wisconsin, 
Illinois,  Minnesota,  Nebraska,  Virginia,  Kentucky,  "West  Vir- 
ginia, Colorado,  Nevada  and  California,  and  in  Wisconsin,  and 
Minnesota  this  inhibition  also  extends  to  their  personal  estate; 
in  Indiana,  Maryland  and  Oregon  the  enactment  of  special 
laws  providing  for  the  sale  of  real  estate  of  persons  under  disa- 
bility by  executors,  administrators,  guardians  and  trustees,  is 
forbidden;  and  in  Pennsylvania,  Texas,  Missouri,  Louisiana 
'and  California,  special  laws  affecting  the  estates  of  minors  or 
persons  under  disability  are  prohibited. 

The  constitutions  of  Louisiana,  Colorado,  California.  'Mary- 
land, Texas  and  Missouri  forbid  the  passage  of  special  or  pri- 


458  VOID  JUDICIAL  AND  EXECUTION   SALES. 

vate  laws  giving  effect  to  informal  or  invalid  deeds  or  wills, 
while  that  of  West  Virginia  forbids  the  enactment  of  special 
laws  authorizing  deeds  to  be  made  for  lands  sold  for  taxes. 
The  constitutions  of  Washington,  Montana,  Idaho,  North 
Dakota,  Utah  and  South  Dakota,  contain  special  restrictions 
against  the  passage  of  special  legislation  in  general. 

Theory  upon  which  Sale  under  Special  Act  Authorized. 

§  505.  In  some  of  the  states  where  private  acts  directing 
the  sale  of  lands  of  infants,  whether  for  liquidation  of  the  lia- 
bilities of  the  ancestor,  or  for  the  proposed  benefit  of  the 
minor  himself,  were  sustained,  such  statutes  were  held  to  be 
constitutional  upon  the  theory  that  there  was  in  fact  no  ju- 
dicial function  involved  in  supplying  the  incapacity  of  such 
infants  or  incompetents,  the  legislature  in  the  enactment  of 
such  statutes  assuming  to  act  only  as  parens  patriae,and  is  not 
depriving  the  infant  of  his  property,  but  merely  assisting  him 
in  using  the  same  in  such  a  manner  as  he  is  otherwise  unable 
to  use  it  by  reason  of  his  incompetency;  that  but  for  his  ina- 
bility to  do  so  he  would  have  utilized  his  property  in  the  iden- 
tical manner  as  the  statute  directs,  and  that  the  ratification  of 
the  disposition  of  the  same,  by  the  court,  is  unnecessary  and 
immaterial. 

(Railway  Co.  v.  Blythe,  69  Miss.  939  —  11  So.  Rep.  Ill;  Watkins  v. 
Holman,  16  Pet.  25:  McComb  v.  Gilkey,  29  Miss.  146;  Hoyt  v.  Sprague, 

103  U.  S.  613;  Boon  v.  Bowers,  30  Miss.  246  —  64  Am.  Dec.  169;  Wil- 
kinson V.  Leland,  2  Pet.  627;  Williamson  v.  Williamson.  3  S.  &  M.  715 
—  41  Am.  Dec.  636;  Kibbey  v.  Chitwood,  4  Mon.  91  —  16  Am.  Dec.  143: 
Davison  v.  Johonnot,  7  Met.  3SS  —  41  Am.  Dec.  448:  Shehan  V.  Barnet, 
6   Mon.   593.) 

Therefore,  upon  this  theory  legislative  licenses  directing 
the  disposition  of  the  property  of  infants  or  other  incompe- 
tents laboring  under  disability  and  incompetent  to  act  for 
themselves,  have  been  sustained,  for  it  is  held  that  in  the  ab- 
sence of  constitutional  restraint,  the  legislature  may  pass 
special  laws  for  the  sale  or  investment  of  persons  who  are  not 
Sid  juris.  In  the  absence  of  constitutional  inhibition  against 
it,  there  is  perhaps  no  valid  reason  that  can  be  urged  that  the 
exercise  of  such  power  should  be  exclusively  confined  to  the 
judiciary. 


INVOLUNTARY    SALES    UNDEB    SPECIAL   ACTS. 


4.V.") 


(Clusky  v.  Bums.  120  Mo.  567  —  25  S.  W.  Rep.  585;  Dickens  v.  Carr, 
84  Mo.  660;  Hoyl  v.  Sprague,  103  U.  S.  613;  Davidson  v.  Koehler,  76 
lnd.  398;  Corgile  v.  Fernald,  63  Mo.  304;  Thomas  v.  Pullis,  56  Mo.  211  ; 
Hindman  v.  Piper,  50  Mo.  294;  Shipp  v.  Klinger,  54  Mo.  238;  Stewart 
v.  Griffin,  33  Mo.   L3;   Brenham  v.  Davidson,  51  Cal.  352.5 

Manifestly,  if  the  party  affected  in  his  property  righl 
sui  juris  the  proceeding  is  wholly  void,  as  it  would  be  equiva- 
lent to  depriving  him  of  his  property  withoul  due  process  of 
law  in  violation  of  the  constitutional  guaranty  in  this  behalf. 

(Clusky  v.   Burns.   120  Mo.  567  —  25  S.  W.  Hep.   585.) 

Grounds  upon  Which  Sale  under  Special  Statute  Authorized. 

§  506.  In  Pennsylvania,  Kentucky,  Missouri,  Massachu- 
setts and  New  York  special  statutes  authorizing  the  sale  of 
the  lands  of  minors  for  investment  of  the  proceeds,  0r  for  their 
maintenance,  have  been  held  constitutional  upon  the  theory 
that  they  merely  provide  for  the  making  of  a  change  of  invest- 
ment of  such  property,  or  satisfies  legal  charges  upon  the 
same,  or  pays  debts  to  which  the  title  is  subordinate. 

(Cochran  v.  Van  Surlay,  20  Wend.  365  —  32  Am.   Dee.   570;    Davison 

v.  Johonnot.  7  Met.  388  —  41  Am.  Dec.  44s:   Kibby  v.  Chitw 1.   I  T.   B. 

Mon.  9i_i6  Am.  Dec.  143;  Stewart  v.  Griffin,  33  Mo.  13  —  82  Am.  Dee. 
148;  Clusky  v.  Bums.  120  Mo.  567  —  25  S.  W.  Rep.  585;  Leggett  V. 
Hunter,  19  N.  Y.  445:  Morris  v.  Clymer,  2  Pa.  St.  277:  Hindman  v. 
Piper,  50  Mo.  294:  Clark  v.  Hayes.  9  Cray.  426;  Sohier  v.  Eospital,  3 
Cush.  483;  Sohier  v.  Trinity  Church.  109  Mass.  1;  Shehan  v.  Barrett,  6 
T.  B.  Mon.  593;  Rice  v.  Parkman,  16  Mass.  329  —  82  Am.  Dec.  148; 
Davis  v.  Hilbig,  27  Md.  452  —  92  Am.  Dec.  646;  Shipp  v.  Klinger,  5  1 
Mo.  238.) 

Special  statutes  have  been  supported  where  no  apparent 
necessitv  has  been  disclosed  for  the  sanction  of  the  conversion 
of  the  iands  of  one  under  disability,  for  the  presumption  is 
said  to  follow  that  such  disposition  is  for  the  benefit  of  the 
incompetent. 

(Brenham  v.  Davidson.  51  Cal.  352:  Davis  v.  Hilbig,  27  Md.  452- 
92  Am.  Dec.  040:  Carroll  v.  Olmstead.  16  Ohio.  251;  Thurston  v.  Thurs- 
ton, 6  R.  I.  296;  Clark  v.  Van  Surlay.  15  Wend.  436;  Snow  hill  v.  Snow- 
hill,  3  N.  J.  Eq.  20.) 

Statutes  authorizing  sales  both  by  guardians  and  adminis- 
trators have  been  upheld  where  no  constitutional  provision 
against  the  passage  of  such  laws  exist. 

(Todd  v.  Flournoy,  56  Ala.  99  — 2S  Am.  Rep.  758;  Williamson  v. 
Williamson,   3   S.   &   M.    715  —  41   Am.    Dec.    636;    Herbert    v.    Herbert, 


4G0  VOID  JUDICIAL  AXD   EXECUTION    SALES. 

Breese,  354  — 12  Am.  Dec.  192;  Doe  v.  Douglass,  8  Blackf.  10  —  44  Am. 
Dec.  732:  Kibby  v.  Chitwood,  4  T.  B.  Mon.  9i  — 16  Am.  Dec.  143; 
Munford  v.  Pearce,  70  Ala.  542;  Gannett  v.  Leonard.  47  Mo.  205;  Wat- 
son v.  Oates,  58  Ala.  647;  Tindal  v.  Drake,  CO  Ala.  170;  Holman  v. 
Bank,  12  Ala.  369.) 

Legislative  sales  of  the  property  of  1x111101*5  to  pay  trie  debts 
of  their  ancestor  have  been  held  void  because  of  an  invasion 
and  usurpation  of  the  judiciary,  and  further  because  such 
sales  are  in  contravention  of  the  constitutional  guaranty 
against  depriving  anyone  of  his  property  without  due  process 
of  law. 

(Jones  v.  Perry.  10  Yerg.  59  —  30  Am.  Dec.  430;  Lane  v.  Dorman,  3 
Scam.  238  —  36  Am.  Dec.  543 ;  Davenport  v.  Young,  16  111.  548  —  63 
Am.  Dec.  320;  Dubois  v.  McLean,  4  McLean,  486;  Rozier  v.  Fogan,  46 
111.  405;  Opinion  of  the  Judges,  4  N.  H.  565.) 


INDEX. 

[References  are  to  sections.] 

A. 

ACCIDENT, 

effect  on  rule  caveat  emptor,  459. 
ACKNOWLEDGMENT, 

omission  of,  or  defective,  420. 

ACTIONS, 

effect  of  retroactive  statutes  on  pending,  500. 

in  personam  distinguished  from  proceedings  in  rem,  195. 

ACQUIESCENCE, 

in  sale,  estoppel  arising  from,  476. 

ADMINISTRATION, 

conclusiveness  of  grant  of,  151,  152,  155,  158. 

void  when  court  has  no  jurisdiction,  179. 

when,  had,  179. 

on  estate  of  a  living  person,  150,  155,  178. 

sale  in,  depends  upon  proper  grant  of  letters  of,  215. 

proceedings  in,  indivisible  though  sale  independent,  219. 

decree  assigning  residue  of  estate  in,  98. 

ADMINISTRATOR, 

sales  by,  judicial,  G,  9. 

sales  by,  are  considered  proceedings  in  rem,  9,  72,  233. 

sales  by,  are  considered  adversary  in  some  states.  72,  158,  235. 

sales  by,  on  claims  barred  by  statute  of  limitations,  154,  224,  247. 

sah-  by,  when  there  are  no  debts,  159,  160,  247. 

sales  by,  of  lands  located  in  another  county,  179. 

sales  by,  void  when  order  appointing,  vacated  because  void,   179. 

sales  by,  without  additional  bond  given,  253,  317. 

effect  of  failure  of,  to  take  oath  regarding  sale,  254,  316. 

sales  by,  without  notice  of  sale,  255. 

sales  by,  who  must  conduct,  299. 

sales  by,  without  appraisement  or  valuation,  335. 

sales  by,  to  raise  excessive  amount,  338. 

purchase  by,  effect  of,  364,  367. 

sales  by,  in  excess  of  what  is  necessary,  456. 

ADVERSE  POSSESSION, 

sale  of  lands  held  in,  351,  352,  353. 


4G2  ixdex. 

AFTER-ACQUIEED  INTEREST, 

does  not  pass  by  sale  under  judicial  process,  421,  422,  457. 

AMOUNT, 

sales  to  raise  excessive,  336,  337. 

judgment  in  excess  of  jurisdictional  limit,  100. 

below  legal  minimum,   102. 

APPEARANCE. 

general,  denned,  82. 

special,  effect  of,  49,  87,  88. 

is  not  a  waiver  of  want  of  jurisdiction  of  subject-matter,  56. 

when,  confers  jurisdiction,  56,  59. 

is  a  waiver  of  process,  59,  82. 

voluntary,  of  minors,  61. 

answer  stricken  out  after,  effect  of,  83. 

general,  waives  defects  in  process  or  its  service,  84,  85. 

unauthorized,  effect  of,  90,  91. 

application  to  remove  from  state  to  federal  court,  89. 

APPELLATE  COURT, 

has  no  jurisdiction  if  lower  court  was  without,  53,  101. 

APPRAISEMENT, 

sales  without,  effect  of,  332,  333. 

waiver  of,  334. 

in  sales  by  administrators  and  guardians,  335. 

wanting,  effect  of  confirmation,  394. 

ASSIGNEES, 

sales  by,  are  judicial,  5. 

ATTACHMENT, 

sales  in  proceedings  in,  nature  of,  21,  95. 

sales  under  constructive  service  limited  to  property  seized,  22,  152, 

179. 
sales  in,  without  notice,  92,  95. 

sales  in,  on  constructive  notice,  cause  of  action  originally  stated,  96. 
sales  of  land  in  justice's  court,  99. 
void,  constructive  service  on,  179. 
sales  based  upon,  title,  423. 

AUCTION, 

execution  sales  must  be  at,  310. 
sales  at,  when  no  by-standers,  328. 

B. 

BANKRUPTCY, 

sales  in,  are  judicial,  5. 


[NDEX.  463 

BID, 

when  and  by  whom  made,  327. 

officer  cannot  represent  absent  bidder,  327. 

nature  of.  327. 

of  judgment  creditor  when  no  by-standers,  328. 

right  of  purchaser  to  refuse  payment  of,  4fll,  462,  46  ~>. 

purchaser  can  not  refuse  payment  of,  when,  462,  463. 

BIDDING, 

combinations  and  devices  to  prevent,  360,  361. 

BOND, 

failure  to  give,  by  administrator  or  guardian,  253,  447. 
additional,  or  sale,  317.  318. 

want  of  additional,  not  fatal  where  no  special  healing  act,  319. 
defective,  or  want  of,  cured  by  confirmation,  when,  399,  400. 

c. 

CAVEAT  EMPTOR, 

when  defective  title,  or  failure  of  title,  457,  458,  462. 

extent  of  rule  of,  457,  458. 

rule,  in   Pennsylvania,   457. 

rule,  applies  to  personal  property,  457. 

rule  of,  in  case  judgment  or  sale  void,  468. 

accident,  fraud  or  mistake,  effect  on  rule,  459. 

rule,  where  judgment  creditor  is  purchaser,  460. 

where  purchaser  has  knowledge,  or  was  negligent,  462,  463. 

rule,  affecting  right  of  purchaser  to  recover  money  paid,  469,  470. 

rule,  on  right  to  subrogation,  4S5. 

CHANCERY  SALES, 

ratification  of,  by  receipt  of  proceeds,  475. 

COLLATERAL  ATTACK, 
defined,  259,  427. 

when,  will  lie  on  judgments,  43,  44,  51,  54,  152,  194,  430,  438,  444. 
when  process  irregular,  66. 

will  not  lie  when  process  served  by  unauthorized  person,  73. 
conclusiveness  of  return  of  officer,  on,  79,  80. 
on  judgment,  on  unauthorized  appearance  of  attorney,  91. 
on  judgment  on  published  process  against   resident  defendant,   105. 
*  complaint  filed  before  proof  of  publication  of  summons,  121. 
presiding  judge  disqualified,  138. 
judgment  beyond  the  issues,  146,  195. 
on  judgment  when  want  of  jurisdiction   appears   affirmatively   by 

the  record,  44,  149,  181,  438. 
on  order  appointing  administrator,  150,  394. 
on  probate  sale  without  notice,  when,  156. 
after  notice,  failure  to  appoint  guardian  ad  litem,  161. 


464  •  INDEX. 

COLLATERAL  ATTACK  —  Continued. 

when,  failure  to  appoint  guardian  ad  litem,  162. 

on  judgment  where  sole  plaintiff  was  dead  when  rendered,  171. 

on  sale  of  land  located  in  another  state,  170. 

on  sale  in  probate  of  land  of  living  owner,  178. 

presumptions  as  to  jurisdiction  on,  180,  429. 

on  judgments  of  inferior  courts,  185,  432. 

misconception  in  form  of  proceedings,  198. 

on  probate  sale  when  petitioner  was  incompetent,  210,  211,  213. 

falsity  of  facts  in  petition  for  order  of  sale,  can  not  be,  231. 

when  provisions  of  special  healing  statute  contravened,   252,   318, 

324,  447. 
on  probate  sale  where  no  additional  bond  was  given,  253,  317,  447. 
on  sale  unconfirmed,  25G. 
instances  of,  428. 

insufficient  service  affirmatively  appearing,  430. 
when,  by  third  person,  435. 
on  sale  founded  on  satisfied  judgment,  439. 
sales  founded  on  constructive  service  of  process,  445,  446. 
on  tax  sales,  446. 
fraud  in  judgment  or  sale,  effect  on,  450. 

COMMUNITY  INTEREST, 

sale  of,  on  judgment  for  separate  debt,  347. 

CONCLUSIVENESS, 

of  judgments  upon  parties  and  privies,  187,  196. 

of  judgments  void  as  to  one  only  of  several  defendants,  188. 

of  judgment,  in  what  capacity,  188. 

of  void  judgment  or  decree,  194. 

of  judgment  outside  of  the  issue,  195. 

of  judgments  in  rem,  196. 

of  judgments  on  title  to  property,  197. 

of  judgments  as  to  creditors,  199,  200. 

of  order  of  sale  in  probate  proceedings,  251. 

CONFIRMATION, 
what  is,  379. 

general  effect  of  order  of,  385,  386,  473. 
is  essential  to  the  sale,  4,  32,  381. 
is  a  requirement  in  sales  under  execution  in  some  states,   19,^0, 

387. 
effect  of,  in  execution  sales,  20. 
effect  of,  on  voidable  acts  or  sales,  27. 
is  an  essential  requirement  under  healing  statutes,  256. 
effect  of,  where  no  notice  of  sale  was  given,  322. 
judicial  sale  at  improper  place  cured  by,  329. 
what  irregularities  cured  by,  380. 
after,  purchaser  is  regarded  as  the  owner,  382. 


INDEX.  4.G5 

CONFIRMATION  —  Continued. 

is  discretionary  in  court.  ."583,  384. 

by,  court  adopts  proceedings  of  officer,  388. 

notice  of  motion  for,  389,  300. 

how  shown.  391. 

when,  presumed,  392. 

by  estoppel,  393,  473. 

effect  of,  when  appraisement  is  wanting.  394,  402. 

cures  defects  in,  or  total  want  of  notice  of  sale,  396. 

sale  at  wrong  time,  place  or  person,  effect  of,  on,  397,  400. 

effect  of,  on  departures  from  order  or  decree,  398. 

defective  bond,  or  want  of  bond,  399,  400. 

execution  improperly  issued,  400. 

will  not  validate  sales  without  order  or  notice,  401. 

defects  not  cured  by,  402. 

sales  by  wrong  persons  not  cured  by,  402. 

one  or  more  essentials  of  healing  statutes  wanting,  402. 

must  be  made  before  execution  of  deed,  412. 

collateral   attack   upon   order  of,   394. 

annulment  of  order  of,  394. 

CONSTITUTIONALITY, 

of  curative  or  retroactive  legislation,  494. 

of  laws  validating  irregular  judicial  sales  or  proceedings,  49.",  490. 

of  statutes  attempting  to  validate  void  judgments  or  sales.  497,  498. 

of  curative  statute  violating  guaranty  of  due  process  of  law,  498. 

of  laws  invading  province  of  judiciary,  499. 

of  statutes  attempting  to  validate  sales  void  for  fraud,  501. 

of  laws  confirming  sales  void  for  informalities,  501. 

of  special  statutes  authorizing  involuntary  sales,  504,  505,  506. 

CONSTRUCTIVE  SERVICE  OF  PROCESS, 

is  insufficient  to  render  personal  judgment,  GO,  108. 
personal  service  out  of  state  equal  to,  CO,  78,  135. 
pleadings  disclosing  absence  or  non-residence  of  defendant,  69. 
amendment  of  complaint  after,  96,  109. 
foreclosure  of  mortgages  on,  proceeding  in  rem,  97. 
amount  in  excess  of  jurisdictional  limit,  100. 
what  is,  103. 

not  available  in  purely  personal  actions,  104,  108. 
'     on  resident    defendant,  effect  of,   105. 
is  in  derogation  of  common  law,  100. 

materia]  requirements  of  statute  must  be  complied  with,  106. 
essential  facts  must  appear,  107. 
in  what  cases  permissible,  108. 

affidavit  for,  what  must  contain,  110,  111,  117,  134. 
affidavit  for,  considered  jurisdictional,  when  tiled.  Ill,  112,  US,  121. 
affidavit  for,  probative  facts  must  appear  in,  llu. 

30 


466  INDEX. 

CONSTRUCTIVE  SERVICE   OF  PROCESS  —  Continued, 
facts  in  affidavit  for,  inferentially  stated,  114. 
affidavit  for,  must  show  action,  one  authorized  by  law  for,  115. 
affidavit  for,  on  information  and  belief,  116. 
relation  of  affidavit  for,  to  publication,  119. 
false  statement  in  affidavit  for,  as  to  cause  of  action,  120. 
verified  complaint  must  be  filed,  122. 
facts  authorizing,  shown  by  return,  123. 
in  actions  against  defunct  corporations,  124. 
order  of  publication,  what  must  contain,  125. 
order  of  publication  issued  by  clerk  without  order  of  court,  126. 
misnomer  of  party  in  affidavit  for,  and  process,  127. 
order  for,  providing  for  unauthorized  service,  128. 
order  abridging  time  for  appearance,  effect  of,  129. 
order  or  process  published  for    too  short  time,  130. 
irregularities  in  published  notice,  effect  of,  131. 
death  of  defendant  during  publication,  132. 
process  published  on  non- judicial  day,  133. 
on  unknown  defendants,  134. 

affidavit  for,  made  by  unauthorized  person,   136. 
against  unknown  on  petition  against  known  defendant,  effect,  of, 

137. 
on  void  attachment,  179. 
presumptions  of  jurisdiction  on,  183,  431. 
in  suits  commenced  after  death  of  defendant,  190. 

CONVEYANCE, 

of  land  in  another  state  by  commissioners  of  court,  179. 

essential  to  transfer  legal  title,  403,  404. 

by  whom  made,  406,  407. 

to  whom  made,  408. 

when  to  be  made,  409,  410,  411,  412. 

when,  void  because  deficient  in  form  or  substance,  414,  415. 

description  in,  sufficiency  of,  and  how  construed,  419. 

defective,  or  omission  of  acknowledgment  in,  420. 

what  title  or  interest  passed  by,  421,  422,  457. 

relates  back  to  inception  of  lien,  423. 

execution  of  proper,  compelled  in  equity,  493. 

COURT, 

domestic,  presumptions  as  to  jurisdiction,  ISO,  429. 
inferior,  presumptions  as  to  jurisdiction,  1S5. 
of  probate,  presumptions  as  to  jurisdiction,  186. 
abolished  before  sale,  308, 

CREDITORS, 

conclusiveness  of  judgment  on,  199,  200. 
judgment,  as  purchasei,  202,  370,  480,  472. 


INDEX.  467 

CURATIVE  STATUTES, 

general  effect  of,  22S,  239. 

provision  of,  252. 

failure  to  give  additional  bond.  253,  .'517.  318,  447. 

no  oath  taken  regarding  the  sale,  254,  310,  447. 

notice  of  sale  not  given,  255,  324,  447. 

purchase  in  good  faith,  257. 

limitation  upon  passage  of,  494. 

validating'  irregular  judicial  proceedings  or  sales,  495,  49G. 

limitation  on  scope  of,  49G. 

have  no  application  to  void  proceedings,  499. 

effect  of,  on  pending  causes,  500. 

defects  not  jurisdictional,  not  cured  by,  501. 

effect  of,  limited  to  original  parties  and  privies,  502. 

operation  of,  on  tax  titles,  503. 

D. 

DEATH. 

of  defendant  during  publication  of  process,  132,  170. 

of  sole  plaintiff  or  defendant,  166,  171. 

not  suggested  by  the  record,  107. 

of  one  of  several  defendants  before  judgment,  1G8. 

execution  issued  after,  of  judgment  debtor,  280,  281. 

writ  issued  after,  of  sole  judgment  creditor,  2S3. 

DEBTS, 

petition  for  order  of  sale  must  show,  220. 

DECEEE, 

holding  conveyance  of  land  in  another  state  fraudulent,  177. 

vacated  after  sale,  173. 

sale  of  mortgaged  property  under,  void,  188. 

is  a  finality  upon  issues  raised,  197. 

directions  in,  must  be  pursued.  200. 

DEED. 

effect  of  unrecorded,  on  right  of  purchaser,  37S. 

in  judicial  and  probate  sales  essential,  403. 

essential  in  execution  sales,  405. 

in  some  states  not  necessary  in  execution  sales,  405. 

under  execution,  by  whom  made,  400. 

by  whom  made  in  chancery  and  probate  sales,  407. 

to  whom    made,  408. 

when,  to  be  executed,  409,  410,  411,  412. 

confirmation  must  be  first  entered,  412. 

execution  of,  compelled,  413. 

when,  void  because  deficient  in  form  or  substance,  414,  415. 

sufficiency  of  recitals  in,  415,  416,  417. 

recitals  in,  as  evidence,  418. 


4G8  INDEX. 

DEED  —  Continued. 

description  in,  sufficiency  of,  and  how  construed,  419. 

acknowledgment  in,  defective  or  wanting,  420. 

interest  or  title  conveyed  by,  421,  422,  457. 

relates  to  inception  of  lien,  423. 

of  sheriff  not  with  warranty,  457. 

errors  or  mistakes  in,  corrected  in  equity,  491. 

execution  of,  compelled  in  equity,  493. 

DEFENDANT, 

rights  and  remedies  on  reversal  of  judgment  or  decree,  292. 

DESCRIPTION, 

void  for  uncertainty,  179,  245. 

of  property  to  be  sold  in  petition,  227. 

if,  given  in  notice,  must  be  substantially  correct,  241. 

of  property  in  order  of  sale,  248. 

must  not  be  indefinite,  354. 

sufficiency  of,  in  deed,  and  how  construed,  419. 

fatally  defective,  can  not  be  validated  or  cured  in  equity.  491. 

DEPARTURE, 

from  directions  in  decree,  260. 

in  case  of  special  healing  statutes,  261. 

in  execution  from  judgment  rendering  identification  impossible,  272. 

from  order  or  decree  cured  confirmation,  398. 

DIRECT  ATTACK, 

defined.  425. 

instances  of,  426. 

no  presumptions  of  jurisdiction  on,  182. 

on  sale,  when  made  by  motion.  486. 

when,  made  by  suit  in  equity,  437. 

DISQUALIFICATION  OF  JUDGE, 

venders  proceedings  invalid.   139,  451. 

effect  of,  when  statute  contravened,  13S,  139. 

DISQUALTFED  PURCHASERS, 
( See  Purchasers. ) 

DUE  PROCESS  OF  LAW, 

comprehensive  definition  impossible,  36. 
interpretation  of  the  term.  37. 
is  the  law  of  the  land,  :i~. 
notice  essential  to.  constituted,  190. 
requires  an  opportunity  to  be  heard.  39,  196. 
power  to  prescribe  notice  i-  in  state,  40. 

statute  providing  for  constructive  notice  on  both  resident  and  non- 
resident alike,  i>  not,  41. 
curative  statutes  nui-t  net  violate  constitutional  guaranty  of, 
eflVt  of  private  net  on  constitutional  guaranty  of.  504. 


INDEX.  469 

E. 

EN  MASSE, 

(See  Parcels.) 
ERRORS  OR  IRREGULARITIES, 

are  unavailable  upon  collateral  attack.  427,  428. 

EQUITIES. 

pre-existing,  378. 

EQUITY, 

will  not  aid  defective  execution  ot  statutory  power,  489. 
assistance  of,  in  correction  of  errors  or  mistakes,  490. 
correction  of  errors  or  mistakes  in  deed  or  proceedings,  491. 
will  compel  officer  to  make  proper  conveyance,  493. 
correction  of  uncertainty  of  description,  492. 

ESTATES, 

of  decedents  in  general,  209. 

ESTOPPELS, 

equitable,  as  to  judicial  sales,  473,  474,  473. 

EXCESSIVE  AMOUNT, 
sale  to  raise,  336,  337. 

EXCESSIVE  QUANTITY, 

effect  of  sale  of,  339,  340. 

EXECUTION, 

must  be  founded  on  valid  judgment,  262. 

must  not  issue  on  satisfied  judgment,  263,  289,  290. 

sale  under,  upon  dormant  judgment,  263,  284,  285,  307. 

must  be  awarded  by  judgment  or  by  law,  264. 

must  be  sufficient  in  form  and  substance,  265. 

must  emanate  from  proper  court,  265. 

issuance  against  defendant  authorized  by  law,  266. 

description  of  parties  and  for  whose  benefit  issued,  207. 

must  conform  to  the  judgment,  268. 

sufficiency  of,  when  not  under  seal,  269. 

should  run  in  name  of  the  state,  271. 

essential  recitals  in,  272. 

limitations  on*  issuance  of,  at  common  law,  273. 

limitations  on  issuance  of,  under  statutes,  274. 

issued  pending  stay  of  proceedings,  275,  276. 

prematurely  issued,  consequences,  27<i. 

judgment  must  precede  the  writ,  277. 

when  objection  raised  for  premature  issuance,  278. 

issued  after  death  of  judgment  debtor,  279,  280. 

issued  after  death  of  one  only  of  several  defendants,  281. 

issued  before,  but  sale  made  after  death  of  debtor,  282,  304. 


470  INDEX. 

EXECUTION  —  Continued. 

issued  after  death  of  sole  judgment  creditor,  2S3. 

issued  on  dormant  judgment,  effect  on  third  parties,  286. 

issued  after  absolute  bar  of  limitation  is  complete,  287. 

issued  on  dormant  judgment  and  creditor  is  purchaser,  288. 

reversal  of  judgment,  291,  292,  293. 

in  officer's  own  favor,  298. 

levy  under,  when  not  essential  to  validity  of  sale,  311. 

when  levy  under,  essential,  314. 

EXECUTION  SALES, 

.subsequent  to  expiration  of  lien  of  „udgment,  203,  204. 

void  when  based  on  satisfied  judgment,  203,  289,  290,  307,  373,  439. 

founded  on  dormant  judgments,  203-,  284,  285,  286,  288,  307. 

on  writ  issued  after  death  of  sole  defendant,  280. 

on  judgment  void  for  want  of  jurisdiction,  294. 

on  other  day  than  that  provided  by  law,  302,  448. 

after  expiration  of  active  energy  of  the  writ,  303,  448. 

after  death  of  debtor,  on  writ  issued  before,  304,  449. 

under  writ  issued  after  bar  of  statute,  305. 

on  writ  issued  before,  but  sale  made  after  expiration  of  lien,  306. 

of  property  in  hands  of  receiver,  309. 

must  be  at  public  vendue,  310. 

without  levy,  effect  of,  314.* 

without  notice,  when  not  void,  321. 

when  sale  without  notice  void,  322. 

of  land  outside  of  county,  330,  448. 

without  appraisement,  332,  333,  334,  335. 

to  raise  excessive  amount,  336,  337. 

of  property  owned  by  third  person,  341. 

of  property  not  subject  to,  341,  342,  343,  344,  345,  346,  347. 

judgment  subsequently  reversed,  201,  292,  293,  294. 

of  partial  interest  only,  348. 

of  land  held  in  adverse  possession.  352,  353. 

of  land  en  masse,  35S,  359. 

confirmation  of,  387. 

deeds  under,  by  whom  made,  406. 

deeds  under,  when  made,  409,  410,  411,  412. 

relation  to  judgment  lien,  423,  424. 

under  several  writs,  when  one  void,  424. 

void  because  of  defect  in  writ  or  its  enforcement,  449. 

ratification  of,  by  acceptance  of  all  or  part  of  proceeds,  474. 

ratification  of,  by  conduct  other  than  by  taking  proceeds,  476. 

acquiescence  in,  effect,   476. 

right  of  purchaser  in,  to  subrogation,  483. 

are  not  judicial,  13,  16. 

are  ministerial,  13,  14. 

officer  is  agent  of  debtor,  14. 

must  be  supported  by  valid  judgment,  14. 


INDEX.  471 

EXECUTION  SALES  —  Continued. 

law  is  officer  s  guide  in  making,  14,  16. 

distinguished  from  judicial  sales,   15. 

not  ministerial  when  confirmation  is  required,  15,  19,  20. 

are  complete  when  property  is  struck  off,   17. 

are  made  after  termination  of  litigation,  18. 

are  void  or  voidable  according  to  materiality  of  departure,  IS. 

how  affected  by  statute  of  frauds,   18. 

EXEMPT  PROPERTY, 

sale  of,  under  execution,  345. 

F. 

FRAUD, 

defendant  brought  in  state  by,  81. 

false  statement  as  to  cause  of  action  in  affidavit,  120. 

in  procuring  judgment,  effect  as  to  creditors,  199,  200. 

lands  conveyed  in,  lien  of  judgment,  208. 

secret,  effect,  3G8,  369,  370,  371,  372,  37:',,  374,  375,  376,  377,  378. 

in  preventing  competition,  360,  361. 

in  representing  to  be  guardian,  213. 

in  judgment  or  sale,  450. 

effect  of,  on  rule  caveat  emptor,  459. 

of  purchaser,  effect  on  title  obtained,  486,  488. 

sales  void  because  of,  confirmation  by  curative  statute,  501. 

G. 

GUARDIAN, 

sale  by,  is  judicial,  12. 

sale  by,  must  be  confirmed  by  court,  12. 

sales  by,  notice,  93,  157,  234.  230. 

sales  of  land  by,  in  another  county,  165. 

fraudulently  representing  to  be,  in  sale,  213. 

sales  by,  statute  must  be  strictly   pursued,  237. 

waiver  of  notice  by,  238. 

statute  authorizing  sale  by,  does  not  include  mortgage  or  exchange, 

249. 
appraisement  in  sales  by,  .'{35. 
sale  by,  to  raise  excessive  amount,  338. 
rule  caveat  emptor  in  sales  by,  458. 

GUARDIAN  AD  LITEM, 

appointment  of,  on  constructive  notice,  61. 
service  on  minor  before  appointment  of,  86. 
failure  to  appoint,  effect,  161,  1(>2. 
effect  of  appointment,  without  notice  on  minor,  172. 


472  ixdex. 

H. 

HEALING   STATUTES, 

l  See  Curative  Statutes.) 

HEIRS, 

unknown,  proceedings  against,  191. 

HOMESTEAD, 

sale  of,  under  execution,  343. 

sale  of,  in  contravention  of  statute,  487. 

HUSBAND  AND  WIFE, 

notice  in  suits  against,  71. 

sale  of  community  interest  of  separate  debt,  346. 

I. 

IMPEACHMENT  OF  EXECUTION  SALES, 

(See  Execution  Sales  and  Collateral  Attack.) 

IMPEACHMENT  OF  JUDICIAL  SALES, 

(See  Judicial  Sales  and  Collateral  Attack.) 

IMPEACHMENT  OF  JUDGMENTS, 

when  may  be  collaterally,  44,  5-1,  152,  194,  434. 

when  proceedings  are  coram  non  judice,  43,  44. 

when  there  is  a  want  of  jurisdiction  of    subject-matter,  54. 

because  of  unauthorized  appearance  of  attorney,  90,  91. 

no  presumptions  as  to  jurisdiction  on  direct,  182. 

collateral,  when  by  third  party,  435. 

INADEQUACY  OF  PRICE, 

effect  of,  on  sale,  355,  356,  357. 
effect  of  confirmation  on,  400. 

INDEFINITE  TRACT, 
sale  of,  effect,  354. 

INSPECTION, 

judicial  record  must  be  tried  by,  427. 

INQUISITION, 

( See  Appraisement. ) 

IN  SOLIDO, 

(See  Parcels.) 

IRREGULARITIES, 

general  effect  of,  on  sale,  259. 

in  case  of  special  healing  statute,  261. 

not  fatal  when  jurisdiction  exists,  45. 

in  published  notice,  131. 

sale  on  non- judicial  day,  301. 


ixdex.  473 

IRREGULARITIES  —  Continued, 
may  be  waived,  32ti. 
inadequacy  of  price  is,  355,  356,  357. 
what,  cured  by  confirmation,  380,  395,  396,  397,  398,  399,  400,  401, 

402. 
unavailable  on  collateral  inquiry,  427,  42S. 
may  be  validated  by  curative  acts,  495. 

J. 

JUDICIAL  PROCEEDINGS, 

when  void,  effect  of,  48,  262. 

void  when  judge  disqualified,   138.   139. 

must  relate  to  matters,  in  issue,  146. 

who  concluded  by,  187. 

on  what  matters  conclusive,  192. 

reversal  of  judgment,  effect  on  sale,  291,  293. 

statutes  declaring  effect  of,  454,  455. 

purchaser  becomes  a  party  to,  467. 

irregular,  may  be  confirmed  by  curative  statute,  495. 

if  void  can  not  be  cured  by  legislative  act,  497,  498. 

JUDICIAL  SALES, 
definition  of,  1. 
classes  of,  23. 

in,  court  is  the  vendor,  2,  299. 
officer  making,  is  agent  of  court,  3,  299. 
is  incomplete  until  confirmed  by  court,  4. 
is  a  sale  pendente  lite,  4. 
what  sales  are,  5  6,  9,  10,  11,  12. 
administrators'  sales  are,  6,  32,  299. 
sales  by  assignees  are,  5. 
sales  in  proceedings  in  admiralty  are,  9. 
by  guardians  are,  12,  299. 
sales  to  enforce  municipal   liens   are,   10. 
sales  in  proceedings  for  partition  are,  8. 
in  foreclosure  of  mechanic's  and  vendor's  liens,  11,  12. 
in  mortgage  foreclosure,  8. 

administrators'  sales  in  Rhode  Island,  are  not,  7. 
to  stranger  under  judgment  subsequently  reversed,  201. 
general  effect  of  irregularities  on,  259. 
reversal  of  judgment,  291,  293. 

by  whom,  must  be  conducted,  295,  297,  298,  299,  300. 
limitations  on  time  of  making,  301. 
on  non-judicial  day,  301. 
how,  conducted,  310. 
without  notice,  322. 
at  improper  or  unauthorized  place,  329. 


474  INDEX. 

JUDICIAL  SALES  —  Continued. 

in  the  absence  of  appraisement,  332,  333,  334,  335. 
deeds  under,  by  whom  made,  407. 

ratification  of,  by  receipt  of  all  or  part  of  proceeds,  475. 
ratification   of,   by  conduct   otherwise  than   by   acceptance  of  pro- 
ceeds, 476. 
irregular,  may  be  validated  by  curative  act,  495. 
if  void,  are  incurable  by  special  legislative  act,  497,  498. 
occur  in  proceedings  in  rem,  or  quasi  in  rem,  18. 
and  during  pendency  of  litigation,  18. 
quasi- judicial  sales,  19. 

sales  in  attachment  on  constructive  service  are,  22. 
are  void  when  court  without  jurisdiction,  48. 

JUDICIARY, 

when  curative  statute  does  not  invade,  495. 
curative  statute  can  not  invade  province  of,  499. 

JUDGE, 

disqualification  of,  138,  139,  451. 
non-attendance  of,  143. 
sitting  outside  of  county,  144. 
cannot  delegate  authority,   151. 

JUDGMENT, 

effect  of  void,  194. 

in  attachment  on  constructive  notice,  21,  22,  92,  95. 

when  may  be  impeached  collaterally,  44,   152,   194. 

when,  is  coram  judice,  45. 

is   void   when   there   is   a   want   of   jurisdiction   of   subject-matter, 

48,  54. 
service  of  process  or  appearance  necessary  to  render  personal,  49, 

59. 
to  render  personal,  jurisdiction  of  defendant  necessary.   59. 
must  be  based  on  written  complaint  or  petition,  62. 
void  if  beyond  the  issues,  62,  146,  195. 
not  void  when  based  on  irregular  process  or  service.  63. 
void  when  based  on  process  materially  defective,  64. 
against  minors,  necessity  of  notice,  70. 
based  on  service  of  process  by  unauthorized  person.  73,  76. 
based  on  written  admission  of  service  of  process,  77. 
on    personal    service    outside    of    state,    78. 
on  unauthorized   appearance,   90,   91. 
for  amount  in  excess  of  jurisdictional  limit,   100. 
when  amount   in  controversy  below  legal  minimum,   102. 
disqualification  of  jud^e,  effect  on  judgment,  139. 
against  deceased  defendant  when  death   not  suggested  by  record, 

167,   168. 
against  sole  defendant  dead  at  time  of  rendition,  169. 


INDEX.  475 

JUDGMENT  —  Continued. 

in  favor  of  solo  plaintiff  (load  at  time  of  rendition,  171. 

against  married  women,  174. 

holding  conveyance  in  another  state  fraudulent  and  void.  177. 

concludes  parties  and  privies,  187. 

void  as  to  one  only  of  several  defendants,  188. 

conclusiveness  of,  in  what  capacity,   lss- 

in  suit  commenced  after  death  of  defendant,   100. 

is  conclusive  on   what   matters.   192,   107. 

conclusiveness  of,  as  t  i  creditors,  199,  200. 

reversal  of,  effect  on   sale,  201,  202.  291,  292,  293. 

enforcement  of,  not  a  judicial  act,  258. 

sale  under  satisfied,  effect,  263. 

sale  under  dormant,  2S5,  286,  2S7.  288. 

direct  and  collateral  attack  on,  425,  420,  427,  428. 

JUDGMENT    IN    REM, 

relief  under,  limited  to  property  seized  or  subjected,  40,  95. 

how  jurisdiction  acquired  to  render,  52,  92,  95. 

on  personal  service  outside  of  state,  78. 

seizure  and  notice,  9^ 

on  cause  of  action  stated,  9G. 

foreclosure  of  mortgages  on  constructive  service,  97. 

decree  assigning  residue  of  estate,  98. 

JUDGMENT  LIEN, 

is  a  general  lien,  205. 

is  creature  of  statute  law,  20'5. 

when  attaches,  207. 

on  what  property,  attaches,  206. 

sales  after   expiration  of,   203,  204! 

attaches  to  land  conveyed  in  fraud  of  creditors,  208. 

is  terminated  by  payment  of  judgment,  203,  439. 

after  expiration  of  period  of  limitation,  287. 

JURISDICTION. 

definition  of,  42,  45,  46. 

upon  what  dependent,  43. 

effect  of  a  want  of,   149. 

when  judgment  is  coram  non  judice,  43,  44.  61,  139.  147.  152.  438. 

want  of,   appearing   affirmatively    upon   record.   44,    149.    152,    181, 

194. 
effect  on  proceedings  when  jurisdiction  exists,  4.). 
essentials  to  right  to  adjudicate,  46. 
sources  of,  47. 

granted  by  constitutional   ami   statutory  provision,  48. 
intiuence  of  civil  code  on,  47. 
of   subject-mat  tor.   how   granted.    48. 
over  subject-matter  and  person  essential,  48. 


476  INDEX. 

JURISDICTION  —  Continued. 

effect  of  want  of,  over  person  of  defendant,  49. 

over  person,  how  acquired,  49,  59. 

of  court,  limit  of,  49,  50,  57,  175. 

may  be  conferred  by  consent,  when,  49,  54,  56. 

over  person  or  property  not  in  state,  50. 

measure  of,  51. 

over  res,  how  acquired,  52,  54,  95. 

no,  in  appellate  court  when  none  below,  53,  101. 

of  subject-matter  under  unconstitutional  act,  55. 

want  of,  of  subject-matter,  appearance  not  a  waiver,  5G. 

conferred  after  institution  of  suit,  effect,  57. 

land  lying  in  another  state,  58,   175,  214. 

of  defendant  essential  to  render  personal  judgment,  59. 

of  person  not  conferred  by  constructive  service,  GO,   179. 

of  minors  must  be  acquired  pursuant  to  law,  Gl,  172. 

acquired  of  plaintiff  through  his  petition,  62. 

irregular  process,  or  service  of  process,  effect  on,  63,  74. 

process  materially  defecth'e,   effect,   64. 

defective  service  and  failure  of  service,  effect  on,  65,  73. 

process  left  at  last  place  of  residence,  68. 

pleading  showing  defendant's  absence  or  non-residence,  69. 

notice  to  minors,  necessity  of,  70. 

process  served  by  party  himself,  75. 

process  served  by  unauthorized  person,   76. 

defendant  brought  in  state  by  fraud  for  service,  81. 

general  appearance  of  defendant,  82,  83,  84. 

unauthorized  appearance  of  attorney,  90,  91. 

in  attachment  proceedings,  92,  95,  96,  99. 

in  sales  by  guardians,  93,  157. 

in  proceedings  in  rem,  how  acquired,  95,  97. 

where  amount  in  controversy  is  in  excess  of  limit,  100. 

amount  in  controversy  below  legal  minimum,  102. 

constructive  service  on  resident  defendant,  105. 

on  constructive  service  of,  essential  facts  must  appear,  107. 

recitals  of,  in  record,  107. 

affidavit  for,  jurisdictional,  111,  113,  114. 

affidavit  for,  sufficiency  of,  115,  116. 

continues  until  final  judgment  when  attaches,  140. 

is  lost  by  appeal  or  removal,  141. 

suspended  during  intervals  between  terms  of  court,   142. 

non-attendance  of  judgment,  143. 

judge  sitting  outside  of  county,  144. 

exhausted  over  subject-matter,  145. 

justice  of  the  peace  absent  on  day  of  trial,  145. 

estates  of  living  persons,  150. 

part  of  defendants  only  summoned,   153. 


INDEX.  477 

JURISDICTION  —  Continued. 

debt  barred  by  statute  of  limitation,  lf>4. 

in  probate  sales,  owner  must   be  dead,    150.   154,   158. 

in  sales  by  administrators.    156,   15S. 

to  sell  lands  located  in  another  county,  l(i3. 

suit  instituted  in  wrong  county,  1U4. 

presumptions  of,  180,  181,  429. 

JUSTICE  OF  THE  PEACE, 

absent   on    day    of    trial,    147. 

defects  in  proceedings  of,  148. 

execution  issued  on  transcript  from,  277. 

* 

L. 

LAND, 

of  decedents,  209. 

located  in  another  state,  sale  by  guardian  or  administrator.  214. 

LEGISLATIVE, 

power  to  validate  irregular  or  voidable  sales,  495,  49G. 

power  to  validate  void  sales,  497,  49S. 

acts  must  not  invade  province  of  judiciary,  499. 

power  to  pass  special  acts  authorizing  sales,  504,  505,  500. 

LEVY. 

after  expiration  of  active  energy  of  execution,   303,  449. 

not  essential  where  judgment  is  lien,  311. 

not   necessary   where   judgment   directs    sale   of   specific    property, 

312. 
when  levy  essential  to  valid  sale,  313. 
how,   made,   313,   315. 

on   personal   property  under   execution,   314. 
essentials  of  a  valid,  315. 

LICENSE  OF  SALE, 

(See   Order   of   Sale.) 

LIEN. 

of  judgments,  203-208,   2G3,   439,  287. 
for  municipal  improvements,  10,  179. 
of   mechanics,    12,   24. 
of  mortgages,  8. 

on  vendors,   11. 

LIMITATION, 

on  issuance  of  execution.  273.  274. 

writ  issued  after  expiration  of  absolute.  2S7. 

writ  issued  and  sale  made  after  bar  of  statute  complete,  305. 

statute  of,  how  affects  void  sale,  452. 

essentials  of  plea  of,  453. 

does  not  operate  in  futuro,  453. 

euect  of  statute  of,  under  healing  statute,   455. 

on  passage  of  curativa  acts,  494. 


478  ixdex. 

M. 

MAEKETABLE  TITLE, 

may  purchaser  demand,  466. 

MARRIED  WOMEN, 

actions   against,    174. 

MINORS, 

jurisdiction   of.   how  acquired,   81,    172. 
voluntary  appearance  by,  effect,  61,  86. 
notice  to,  necessity  of,  70,   172. 
ratification  of  sale  by,  4  77. 
legislative  sales  of  property,  505,  506. 

MISCONCEPTION, 

of  form  of  proceeding,  effect,   198. 

MISNOMER. 

in  process,  -waived  by  appearance,  S4. 
of  party  in  affidavit  for  publication,   127. 
in  published  process  or  order,  27,  134. 

MISTAKE, 

effect  of,  on  rule  caveat  emptor,  459. 

MORTGAGE, 

>ales  in  foreclosure  of  judicial,  8. 

when  sale  under,  not  judicial,  9. 

sales  in  foreclosure  of,  on  constructive  service.  97. 

foreclosure   of,   on   published   process   against   resident,    105. 

foreclosure  of,  against  infant  not  made  a  party,  172. 

foreclosure  of.  on  land  in  another  state,  176. 

foreclosure  of,  nature  of  proceedings,   196. 

sale  of  property  subject  to,  350. 

void  foreclosure  of,  ratification,  47"). 

subrogation   in   void   foreclosure   sale,   479. 

uncertainty  in  description  and  proceedings,  472. 

MUNICIPAL, 

foreclosure  of,  lien,  10 

sale  of  property  of,  corporation  under  execution.  346. 

K 

NON-RESIDENTS, 

judgments  against,  when  void,  50. 

NOTICE, 

constructive,  what   is,   103. 

in  attachment  proceedings,  92.  152. 

in  suits  against  husband  and  wife,  71. 

is  essential  to  due  process  of  law,  37.  38,  196. 


lMiKX. 


479 


NOTICE  —  Continued. 

must  be  such  as  the  law  provides  for,  38. 

power  to  prescribe  notice  in  state,  40. 

manner  of  service  of,  to  provide,  40. 

constructive  service  of  resident   under  law  permitting  it,  void,  41. 

to  valid  judgment,  is  indispensable,  59. 

actual,  66. 

leaving  summons  at  last  place  of  residence,  68. 

on  minors,  necessity  of,  70,   161. 

in  sales  by  administrators,  when  not  jurisdictional,  72,   156,  233, 

443. 
when,  jurisdictional  in  probate  sales,  72,   158,  226,  232,  235,  443. 
irregular   service  of,   73,   74,  23!). 
service  of,  by  party  to  suit,  75. 
service  of,  by  private  person,   70. 
written   admission  of   service  of,   77. 
personal  service  of,  outside  of  state,  60.  78.  103.  135. 
defendant  brought  in  state  by  fraud,  notice  on,  8i. 
general    appearance   avoids,   82,   83. 
guardians,  sales  by,  93,  23!). 
necessity  ot,  in  proceedings  in   rem,  05. 
constructive,  on  resident  defendant,   105. 
constructive,  is  in  derogation  of  common  law,   10G. 
constructive,  in  what  cases  available,   108. 
affidavit  for  constructive,  what  must  contain,   110,  112. 
by  publication  must  he  based  on  verified  complaint,  122. 
irregularities  in  published,   131. 
death  of  defendant  pending  publication  of,  170. 
waiver  ot,  by  guardian,  238. 
must  be  substantially  as  required  by  law,  240. 
if  description  in,  must  be  correct,  241. 
service  of,  in  unauthorized  manner,  242. 
provisions  of  statute  as  to  length  of,  243. 
of  motion  for  confirmation,  3S9,  390. 

NOTICE  OF  SALE, 

effect  of,   320,  325. 

want  of,  under  healing  statutes,  255,  324. 

want  of,  when  not    fatal,   321. 

when  failure  to  give,  fatal,  322. 

want  of,  in  judicial  sales,  323. 

may  be  waived,  326. 

defective,  or  want  of,  cured  by  confirmation,  396. 

0. 

OATH, 

failure  to  take,  concerning  sale,  254,  .".10,  447. 
statute  requiring,  concerning  sale,  how  construed.  316. 


480  INDEX. 

ORDER  OF  PUBLICATION, 

must  contain  essential  particulars,   125. 
issued    by  clerk   without   authority,    126. 
providing  for  unauthorized  service,   12S. 
abridging  time   for   appearance,   127. 
published  for  too  short  time,   130. 

ORDER  OF   SALE, 

is  the  judgment  whereon  sale  is  founded,  210,  245. 

authorizing  part  only  of  administrators  to   sell.   212. 

based  on  petition  stating  ground  not  authorized  by  law,  216. 

is  an  adjudication  upon  the  essential   facts  of  petition,  231,  251. 

must  not  go  beyond   the  petition,  244,   440. 

only  land  embraced  in,  can  be  sold,  245,  344. 

on   petition  to  mortgage,  246. 

based  on  debts  barred  by  statute  of  limitations,  247. 

description  of  property  in,  248. 

is  conclusive  if  court  had  jurisdiction,  251. 

land  sold  not  embraced   in,  442. 


PARCELS, 

sales  en  masse,  358,  359. 

PARTIES  AND   PRIVIES, 

who  are,   187,   193. 

who  concluded  by  judgment,  187,  192,  196,   197,   199. 

in  petition  for  order  of  sale,  226. 

PARTITION, 

sale  for,  is  judicial,  8. 

sale  for,  of  lands  of  minors,  70. 

sale  for,  of  land  in  another  state,  176. 

PERISHABLE  PROPERTY, 
sale  of,  pendente  lite,  94. 

PERSONAL   PROPERTY, 

sale  under  execution,  levy  on,  315. 
place  of  sale  under  execution,  331,  449. 

PETITION   FOR  ORDER  OF   SALE, 

must  Ik-  presented  by  competent  petitioner,  210,  211,  213. 

by  part  only  of  several  administrators,  212. 

is  the  initial  step  in  probate  sale,  215,  219. 

substantial  compliance  with  statute  regarding,  essential.  216,  441. 

to  authorize  sale  must  show  statutory  cause,  216,  222.  4  11. 

essential   facts  defectively  stated   in,   218. 

must  show  the  existence  of  debts,  220. 

averment  in,  of  non-existence  of  personal  property.  221. 


INDEX.  481 

PETITION  FOR  ORDER  OF  SALE  —  Continued. 
must  show  necessity  for  sale  of  land    223. 
verification  of.  22."). 
interested   parties   named   in.   226. 
should  describe  the   property.   227. 
liberal   construction  of,  229. 

jurisdiction  depends  on  sufficient  averment  of  facts  in.  230. 
falsity  of  facts  stated  in,  cannot  be  collaterally  shown,  231. 
measures  the  extent  of  the  order  of  sale,  244. 
lands  sold  not  embraced  in,  440. 
petition   and  order   both   failing   to   show   necessity   for   sale,   455. 

PLACE    OF    SALE, 

sales   at   improper   or   unauthorized,   329. 
sales  under  execution  outside  of  county,  330. 
of    personal    property   under    execution,    331. 
sale  at  wrong,  confirmation  of,  397. 

PREMATURE, 

issuance   of   execution,   276,   277,   278. 
issuance  of  writ,  when  objections  raised,  278. 

PRESUMPTIONS, 

when  record  shows  service  on  wrong  person,  67. 

pleading  showing  defendant   absent   or   non-resident,  69. 

of  due  publication,  107. 

as  to  jurisdiction,   180,  429. 

when  jurisdictional  facts  are  recited,  181. 

of  jurisdiction  on  direct  attack,   182. 

of  jurisdiction  upon  constructive  service  of  process,  183,  431. 

extent  of  rule  as  to,  184. 

lapse  of  time,  184. 

as  to  inferior  courts,  185,  432. 

as  to  courts  of  probate.  186,  433. 

as  to  jurisdiction  on  collateral  attack,  429. 

insufficient  service  appearing,  430. 

PRICE, 

inadequacy  of,  355,  356,  357. 

PRIVATE    ACTS, 

constitutionality  of,  504,  505,  506. 
theory  upon  which,  are  sustained,  505. 
grounds  upon  which  sule  under,  authorized,  506. 

PRIVATE   SALES, 

when  void,  310,  402. 

PRIVIES, 

(See  Parties  and  Privies.) 

31 


482  index. 

PROBATE  COURTS, 

whether  superior  or  inferior,  186. 
presumptions  as  to  jurisdiction,  433. 

PROBATE  SALES, 

are  proceedings  in  rem,  72,  155,  232,  233. 

also  held  to  be  adversary,  72,  158,  232,  234,  235. 

decree  assigning  residue  of  estate,  in  rem,  98. 

fundamental  facts  is  death  of  owner,  156. 

when  there  are  no  debts,   159,   160,  247. 

when  no  guardian  ad  litem   was  appointed,  162. 

of  lands  located  in   another   state,    175,    179,   214. 

of  lands  located  in  another  county,   165. 

of  lands  of  a  living  owner,  178. 

void  when  order  appointing  administrator  vacated  as  void,  179. 

under   petition   presented  by   unauthorized   petitioner,   210,   211. 

must  be  supported  by  petition  for  order  or  license,  215,  441. 

authorized  only  on  allegations  of  statutory  causes,  216,  222,   441. 

are  independent  proceedings,  219. 

to  pay  expenses  of  administration,  222. 

account  of  personal  estate  in  application  for,  223. 

on  barred  claims,  224,  247. 

parties  to  proceedings  in,  226. 

policy  of  the  law  regarding,  229. 

jurisdiction  to  order,  dependent  on  sufficient  averments,  230. 

of   part   interest  only,  validity  of,   250,   349. 

failure  to  give  sale  bond,  253. 

to  raise  excessive  amount,   338. 

deeds  under,  by  whom  made,  407. 

of  land  not  embraced  in  the  order,  442. 

without  notice  of  application,  158,  232,  234,  235,  443. 

rule  caveat  emptor,  459. 

ratification  of,  by  receipt  of  proceeds,  475. 

subrogation  in,  481. 

execution  of  proper  deed  compelled,  493. 

if  void,  not  capable  of  legislative  validation,  497. 

PROCEEDINGS  IN  REM, 

perishable  property,  sale  of,  94. 

guardians'  sales.  93,   157,  158. 

probate   sales,   72,    156,   233. 

only  property  before  court  affected,  95. 

judgment  on  cause  of  action  stated,  95. 

foreclosure  of  mortgages  on  constructive  service,  97. 

decree  assuming  residue  of  estate,  98. 

actions    against    unknown    defendants,    134. 

distinguished  from  actions  in  personam,   196. 


IXDEX. 


183 


PROCEEDS  OF  SALE, 

purchaser  not  bound  1o  see  to  proper  application  of,  374. 
purchase  money  not  fully  paid,  375. 
must  be  paid  to  proper  officer,  377. 
acceptance  of,  ratification  of  sale,  473,  474. 

PROCESS, 

constructive  service  of,  what  is,  103. 

must  be  served  within  territorial  jurisdiction  of  court,   59. 

constructive    service    not    sufficient    to    render    personal    judgment, 

GO,  104. 
personal  service  of,  beyond  state,  is  constructive  service  of,  GO,  135. 
on  minors,  61,  86,  161. 
irregular  service  of,  G3,  73,  239. 
wanting  in'  substance,   64. 

defective  service  and  failure  of  service,  65,  239. 
irregularities  in,  66. 

record  disclosing  service  of,  in  particular  manner,  67. 
leaving,  at  last  place  of  residence,  68. 
service  of,  by  unauthorized  person,  73,   76. 
service  of,  by  party  to  suit,  75. 
service  of,  by  private  person,  7G. 
written  admission  of  service  of,  77. 
acceptance  of  service  of,' outside  of  state,  78. 
service  of,  on  defendant  brought  into  state  by  force  or  fraud,  81. 
general  appearance  waives,  82. 
general  appearance  waives  defects  in,  84. 

jurisdictional  defects  in  issuance  of,   waived  by  appearance,   85. 
publication  of,  must  be  valid,  107. 

death  of  defendant   pending   publication  of,    132,   170. 
published  on  non-judicial  day.  133. 
constructive  service  of,  on  unknown  defendant,   134. 
affidavit  for  constructive  service  of,  made  by  wrong  person,   136. 
served  on  part  of  several  defendants  only,   153. 
service  of,  in  another  state  in  suit  to  vacate  conveyance,   179. 
recital  of  service  of,  contradicted  by  record,  181. 

PROPERTY, 

should  be  described  in  petition  for  order  of  sale,  227. 
not  subject  to  sale,  341,  342.  344.  345.  34G,  347. 
sale  of  partial  interest  in,  348,  349,  350. 

PUBLICATION, 

of  process  for  too  short  time,  130. 

death  of  defendant  pending,  of  process,  132,  170. 

of  process  on  nan-judicial  day,  133. 

against  unknown  on  petition  against  known  defendant,  137. 

of  notice,  statutory  piovi=»ions  as  to  length,  243. 


484  INDEX. 

PURCHASER, 

in  good  faith  under  healing  statute,  257. 

in  good  faith,  effect  of  reversal  of  judgment,  201,  293. 

at  sales  void  for  wan!-,  of  jurisdiction.  294. 

fraudulent  practices  of,  to  prevent  competition,  360,  3C1. 

sale  to  disqualified,  362,  363,  364,  365.  366,  367.  454. 

effect  of  secret  fraud  on,  368,  369,  372,  374,  376,  37S. 

judgment  creditor  as,  370.  472. 

innocent,  from  fraudulent  vendee,  373. 

caveat  emptor,  defective  title  or  failure  of  title,  457. 

rule  caveat  emptor,  when  sale  void,  45S. 

must  look  to  jurisdiction  of  court,  458. 

generally  rule  caveat  emptor  applicable,  457,  458,  459. 

having  knowledge  of  defective  title.  459.  462. 

rule  caveat  emptor  when  creditor  is,  460. 

right  to  refuse  payment  of  bid,  46i,  462.  465. 

when  can  not  refuse  payment  of  bid.  463,  464. 

is   chargeable  with   facts  disclosed  by  records,  464. 

demand  marketable  title,  466. 

is   party  to   proceedings   and   may  be  compelled   to   pay,   467. 

liability  of,  on  refusal,  468. 

right  of,  to  recover  money  paid,  469,  470. 

reimbursement  of,  before  recovery  of  land  can  be  had,  470. 

right  of,  to  subrogation  in  chancery  sales.  478. 

right  of,  to  subrogation  in  void  mortgage  foreclosure,  479. 

right  of,  to  subrogation  in  foreclosure  of  tax  liens,  479. 

right  to  subrogation  in  probate  sales,  481. 

right  to  subrogation  in  execution  sales,  483. 

effect  of,  fraud  on  title,  486. 

right  of,  to  equitable  assistance,  489,  490,  491,  492,  493. 


Q. 

QUANTITY, 

sale  of  excessive,  339,  340. 


E. 

RATIFICATION, 

act  of  parties  on  void  sales,  27. 

of  void  sales,  393.  473,  474.  475,  476. 

by  conduct  otherwise  than  by  receipt  of  proceeds,  476. 

by  minors,  477. 

RECEIVER, 

execution  sale  of  property  in  hands  of,  309. 


ixdkx.  485 

RECITAL, 

jurisdiction   in   record,    180,   181,  430. 

in  record  on  constructive  service,  183. 

what    recitals  essential    in   execution,   183. 

sufficiency  of,  in  deed  under  execution,  415,  410,  417,  418. 

imports  verily,   lso,   181,  430,  458. 

RECORD, 

purchaser  is  charged  with  notice  of  facts  disclosed  by,  4o4. 

REIMBURSEMENT, 

of  purchaser  as  condition  precedent  to  recovery,  471. 

REFORMING, 

sheriff's  deed,  491. 

mortgage  and  foreclosure  proceedings,  492. 

RELATION, 

of  deed  and  title  to  lien,   423. 

to  lieu  of  attachment,  423. 

of  deed  to  mortgage  lien,  42'). 

of  deed  in  sale  under  several  executions,  424. 

RESALE, 

purchaser's  liability  on,  4G8. 

RETROACTIVE   STATUTES, 
(See   Curative   Statutes.) 

RETURN". 

conclusiveness  of,  after  judgment,  66,  70,  80. 

irregularity   in,   66. 

record  disclosing  service  on  wrong  person,  <;7. 

facts  authorizing  constructive  service  shown  by,  123. 
of  sheriff  under  execution   levy,   314. 
omission  of,  or  defective,  37ii. 

REVERSAL  OF  JUDGMENT, 

effect  on  sale  to  stranger,  201,  291,   293. 
when  judgment  creditoi   is  purchaser,  202. 
rights  and  remedies  of  defendant  upon,  292. 
for  want  of  jurisdiction,  294. 

s. 

SALE, 

at   improper  or  unauthorized  place,  329. 

under   execution   outside  of   county.   330. 

of  property  not   subject   to  execution,  341-347. 

of  land  not  embraced  in  order,  344. 

of  partial  interest  when  whole  owned  by  defendant,  348,  349,  350. 

of  land  in  adverse  possession,  351,  352,  353. 


486 


IJ*DEX. 


SALE  —  Continued. 

of  undesignated  tract,  3.54. 

to  disqualified  purchaser,   302-367. 

effect  of  fraud  on,  36S. 

vacated  by  direct  proceeding,  43G. 

vacated  by  suit  in  equity,  437. 

without  notice  of  application  for,  443. 

of  land  located  in  another  state,  444. 

upon  judgment  on  constructive  service,  445. 

under  execution  at  wrong  time  and  place,  448. 

what  title  or  interest  passes,  459. 

SALE   BOND, 

(See  Bond.) 

SCOPE, 

of  curative  statutes  in  general,  49G. 
SEAL, 

execution  not  under,   2G9,   449. 

SHERIFF, 

purchase  by,  at  sale  conducted  by  him,  365. 
SPECIAL  ACTS, 

authorizing  involuntary   sales,  theory  upon   which   sustained,   505. 

grounds  upon  which  sales  authorized  under,  506. 

STATUTES, 

_  authorizing  sales  does  not  include  mortgage  or  exchange,  249. 
repealed  before  sale,   308. 

requiring  oath  concerning  sale,  how  construed,  310. 
requiring  notice  of  sale,  325. 

providing  for  appraisement,   how  construed,   332,   333,   334,   335. 
of  limitations,  effect  on  void  sales,  452. 
essentials  to  plea  of  statute  of  limitations,  453. 
declaring  effect  of  judicial  proceeding,   454,  455. 
validating^  irregular  judicial   proceedings.   494-499. 
limitations  on  scope  of  curative  statutes.  49G. 
authorizing  involuntary  sales,  504,  50.5.  50G. 

STATUTE  OF  FRAUDS, 

docs  not  apply  to  judicial  sales  as  a  rule,  32. 
affecting  execution   sales,   34. 
sales  by  administrators  in  Illinois,  33. 
wlint   sufficient  to  satisfy,  35. 

STAY  OF   PROCEEDINGS, 

execution  issued   pending,  27-5.  276. 

STYLE, 

writ  should  run  in  name  of  state,  271. 


INDEX.  487 

SUBROGATION, 

right  of  purchaser  to,  in  chancery  sales,  478. 

in  void  mortgage  foreclosure  sales,  479. 

purchaser's  righl    to,  in  foreclosure  of  tax  liens,  480. 

in  probate  sales,  481. 

right  of  purchaser  to  subrogation  when  sale  i-  void,    182,  484. 

in  sales  under  execution,  483. 

right  to,  denied,  485. 

fraud  of  purchaser  on  right   to,  48(1,  488. 

right  to.  when  homestead  was  sold  in  contravention  of  law,  487. 

SUNDAY, 

judicial  or  execution  sales  on,  301. 


T. 

TAX  SALES, 

in   foreclosure  of  tax   liens,   446. 

rule  caveat  emptor  in,  458. 

purchaser's  right  to  subrogation  in  void,  480. 

TAX   TITLES, 

operation  of  curative  statutes  on,  503. 

TIME  OF  SALE, 

under  execution  on  other  day  than  that  provided  by  law,  302. 
sale  at  wrong,  confirmation,  397. 

TITLE, 

to  land  located  in  another  state,   175. 

conclusiveness  of  judicial  determination  upon,  198. 

sale  of  naked,  legal,  342. 

passes  by  deed,  403,  404. 

obtained  by  purchaser,  421,  422. 

defective,  or  failure  of,  rule  caveat  emptor,  457. 

may  purchaser  demand  marketable,  460. 


u. 


UNDESIGNATED  TRACT, 
sale  of,  354. 


UNKNOWN  II K1US. 

proceedings  against,  191. 

statute>  purporting  to  forfeit  title  of,  498. 

unrecorded  deeds,  378. 

V. 

VALUATION. 

(See  Appraisement.) 


488  index. 

VARIANCE, 

in  execution  from  judgment,  272. 

VENDOR, 

liens  of  vendors,  foreclosure  sale  judicial,  11. 
who  affected  by  vendor's  liens,  11. 

VERIFICATION, 

of  petition  for  order  of  sale,  225. 

VOID  AND  VOIDABLE, 

distinction  between,  25,  26,  27. 

denned,  26,  475. 

what  is  voidable  sale,  26. 

voidable  act  or  sale  may  be  validated,  27. 

who  bound  by  voidable  act,  27. 

use  of  terms,  28. 

meaning  attributed  to,  29. 

when  act  or  deed  is  void,  29. 

void  sale  incapable  of  confirmation,  29. 

degree  of  voidness,  30. 

qualified  void  acts,  31. 

statutes  declaring  sales  void,  construction,  454,  455,  456. 

effect   of   confirmation,   473. 

void  proceedings  or  sale  can  not  be  validated  by  statute,  497. 

VOID  SALES. 

classification  of,  27,  29. 

can  not  be  confirmed,  29,  473. 

convey  no  estate  or  interest,  29. 

under  execution  upon  judgment  on  constructive  service,  60. 

foreclosure  of  mortgage  against  resident  on  published  process,  105. 

sale  by  administrator  of  living  owner's  lands,  150,  158,  178. 

by  administrator  on  barred  claim,  154,  224,  247. 

by  administrator  without  notice.    158. 

in  mortgage  foreclosure  against  infant  not  a  party,  172. 

of  land  located  in  another  state,  175,  176,  444. 

by  administrator  when  order  appointing,  subsequently  vacated,  179. 

upon  petit. on  presented  by  unauthorized  petitioner,  210,  211. 

of  partial  interest  only,  or  interest  subject  to  mortgage,  250,  348, 

349. 
where  essential  of  healing  statute  disregarded.  252. 
failure  to  give  sale  bond.  253.  317,  318. 
where  no  oath  concerning  sale  was  given,  254,  316. 
no  notice  of  sale  given,  255,  324,  447. 
sale  not  confirmed,  256. 

based  on  satisfied   judgment,  263,  289,  307,  439.  * 

execution  sale  under  writ  in  officer's  own  favor,  298. 
of  property  in  hands  of  receiver.  309. 
execution  sales  outside  of  county,  330. 


INDEX.  48U 

\  OID  SALES  —  Continued. 

of  persona]  property  at  unauthorized  place,  331. 
without  appraisement  or  inquisition,  332. 
lands  sold  not  embraced  in  order,  :!44. 
property  of  municipal  corporal  ion  under  execution,  34G. 
community  interest  on  separate  debt,  347. 
lands   held   in  adverse  possession,   351,   352. 
fraudulent  practices  of  purchaser,  3G1,  363. 
■    under  several  executions  when  one  or  more  void,  424. 
tax  sales,  446. 
instances  of,  438-451. 

w. 

WAIVER, 

of  appraisement,  334. 

of  notice  of  sale,  326. 

of  notice  to  minors,  238. 

appearance  of  defendant,  of  fraud  in  getting  in  state,  81. 

WILL, 

if  provides  for  sale,  court  without  authority  to  order,  245. 


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